Civil and Commercial Perspective... An analysis of the identification and repayment principles of the joint debt of husband and wife.
Published:
2024-03-04
The so-called joint debt of husband and wife is the debt that the husband and wife jointly sign or the husband and wife ratify after the fact, and the debt that the husband and wife bear for the daily needs of the family in their own name during the marriage. Although the provisions of Article 1064 of the the People's Republic of China Civil Code are more detailed, the joint debt of husband and wife presents different forms, so the situation of determining the joint debt of husband and wife in judicial practice is more complicated.
The so-called joint debt of husband and wife is the debt that the husband and wife jointly sign or the husband and wife ratify after the fact, and the debt that the husband and wife bear for the daily needs of the family in their own name during the marriage. Although Article 1064 of the the People's Republic of China Civil Code is more detailed, due to the rich and colorful family life, the joint debt of husband and wife also presents different forms, so the situation of determining the joint debt of husband and wife in judicial practice is more complicated.
Criteria for Determining Joint Debt of Husband and Wife in 1. Divorce and Non-Divorce Cases
1. In a divorce case, one of the spouses raises debts in his own name (in the name of both parties) for the husband and wife to live together and request confirmation as the husband and wife's joint debts. The judge will generally not deal with it because it involves the rights and interests of creditors outside the case and belongs to a different legal relationship with this case (divorce case), and inform the parties that they can claim rights separately.
(1) The author once represented the defendant in the divorce case, and the defendant provided a debit note and transfer certificate signed by both the original defendant, claiming that the loan was a joint debt of the husband and wife. The plaintiff recognized the authenticity of the debit note, but the judge considered that it involved the rights of creditors outside the case and belonged to a different legal relationship with the case and did not deal with it.
(2) The author has also represented the plaintiff in the divorce case, and the plaintiff provided the debit note and transfer voucher signed by the defendant, claiming that it cannot be regarded as the joint debt of husband and wife. The judge held that the rights of creditors outside the case were involved and that they were in a different legal relationship with the case and were not dealt. After the creditor filed a separate private lending lawsuit, the court after the trial that the loan is signed by one party (the defendant in the divorce case), the judgment of one party (the defendant in the divorce case) to bear the responsibility.
2. Criteria for determining the joint debt of husband and wife in non-divorce cases.
(1) The debt of the joint signature of the husband and wife or the joint intention of one of the husband and wife after the fact. It is worth noting that the way of post recognition is not limited to written form. It can be judged by the contents recorded by telephone recording, SMS, wechat, email, etc., and this kind of debt should be recognized as the joint debt of husband and wife. For the "non-co-signing" after-the-fact recognition, the trial practice is generally from the purpose of borrowing, the attitude of the borrower's spouse to the debt and the flow of funds, consider whether the creditor has a legitimate interest in the debtor's spouse, combined with the specific form of after-the-fact recognition to determine.
(2) The debts incurred by the daily needs of the family shall be borne jointly by the husband and wife, with the exception of other agreed circumstances, and the agreement within the husband and wife cannot be opposed to a bona fide third party. How to determine the "daily needs of the family", the trial practice is generally from the purpose of borrowing, the meaning of the husband and wife for the debt, the husband and wife's income source and income situation and other comprehensive determination.
(3) Debt that exceeds the daily needs of the family, or may be called a major family agent. The creditor has evidence that the debt is used for the joint life of the husband and wife, joint production and operation, or based on the joint intention of the husband and wife, it is also a joint debt of the husband and wife. During the marriage relationship, in addition to the formation of daily family debts, the husband and wife will also form a large amount of loans, gifts and other debt relations with the third party. In order to protect the legitimate rights and interests of the spouse who has not borrowed money, the law clearly stipulates that the debt incurred in such cases is not a joint debt of husband and wife in principle, but if the creditor can prove that the debt exists in the above circumstances, it should also be determined that the debt has the nature of the joint debt of husband and wife.
(4) Other causes identified as joint debts of husband and wife
① The premarital debt of one party is generally a personal debt, but if the premarital debt results in the benefit of one of the spouses after the marriage, it should be recognized as a joint debt of the husband and wife.
② According to Article 168 of the the People's Republic of China Civil Code, if two or more persons jointly commit a tort and cause damage to others, they shall be jointly and severally liable. Therefore, the debt incurred by the husband and wife in the joint infringement is the joint debt of the husband and wife.
③ According to the first paragraph of Article 188 of the the People's Republic of China Civil Code, if a person with no capacity for civil conduct or a person with limited capacity for civil conduct causes damage to others, the guardian shall bear the tort liability. Therefore, the debt of the husband and wife due to the guardian's infringement shall be the joint debt of the husband and wife.
④ The debt of one party's infringement is, in principle, a personal debt, but the infringement is related to family life and benefits the family, and is a joint debt of the husband and wife. For example, taxi drivers need compensation for injuries caused by others. Since the taxi operating income is used for family life, the debt generated by this infringement should be the joint debt of the husband and wife.
The repayment of the joint debt owed by the 2. husband and wife shall be based on the joint property of the husband and wife.Except as otherwise agreed.
Article 1065 of the the People's Republic of China Civil Code provides that a man and a woman may agree that property acquired during the marriage and pre-marital property shall be owned separately, jointly or partly separately or partly jointly.
The third paragraph of this article stipulates that the husband and wife agree that the property acquired during the existence of the marriage relationship shall be owned by each other, and if the relative knows the agreement, the personal property of the husband or wife shall be paid off.
In conjunction with the above, the joint debt of the husband and wife shall be repaid with the joint property of the husband and wife, and if the husband and wife have an agreement on the joint property, the agreement is limited to the validity of the husband and wife, unless the third party is aware of the agreement.
3. the general principle of defining the joint debt of husband and wife.
Because of the secrecy and particularity of husband and wife life, and the provisions of the law can not be comprehensive, it is difficult to identify the debt of husband and wife. If one of the spouses invests in the business, it is true that the other is not discussed at first, but the proceeds are used for family life. Later, when the investment and operation fail, the family no longer benefits, and when confirming the joint debt of the husband and wife, the other party is often unwilling to bear it on the grounds of not knowing it. At this time, it cannot be denied that the investment operator is indeed making efforts to improve the family's living environment. It is indeed unfair to let the investment operator bear the loss alone because it has failed and did not generate income for the family. Therefore, the definition of the joint debt of husband and wife should maintain a prudent attitude, implement the principle of combining benefits and risks, so as to achieve a unified standard of adjudication and the application of the law, advocate the harmonious and stable family concept of the marriage and family section of the the People's Republic of China Civil Code, and achieve a "win-win" situation.
Legal Articles: the People's Republic of China Civil Code
Article 140 [Means of expression of meaning]]The perpetrator may express or implicitly express his or her intention.
Silence can be regarded as an expression of meaning only when there are legal provisions, agreement of the parties or in accordance with the trading habits between the parties.
Article 1064 [Joint Debt of Husband and Wife]]The debts incurred by the husband and wife, such as the joint signature of the husband and wife or the subsequent ratification of the husband and wife, and the debts incurred by the husband and wife for the daily needs of the family in their own name during the marriage, belong to the joint debts of the husband and wife.
The debt incurred by one of the spouses in the name of the individual during the marriage that exceeds the daily needs of the family does not belong to the joint debt of the husband and wife; however, the creditor can prove that the debt is used for the joint life of the husband and wife, joint production and operation, or on the basis of the joint intention of the husband and wife.
Article 1065 [Marital Property System]]The man and the woman may agree that the property acquired during the marriage and the premarital property shall be owned separately, jointly or partly separately or partly jointly. The agreement shall be in writing. If there is no agreement or the agreement is unclear, the provisions of Articles 1062 and 1063 of this Law shall apply.
The agreement between the husband and wife on the property acquired during the marriage and the pre-marital property shall be legally binding on both parties.
The husband and wife agree that the property acquired during the marriage shall be owned by each other, and the debts incurred by the husband or wife to the outside world shall be paid off with the personal property of the husband or wife if the relative knows the agreement.
Article 1,168 [Joint Tort]]If two or more persons jointly commit an infringing act and cause damage to others, they shall bear joint and several liability.
Article 1,188 [Guardian Responsibility]]If a person without civil capacity or a person with limited civil capacity causes damage to another person, the guardian shall bear the tort liability. If the guardian performs his duty of guardianship, his tort liability may be reduced.
If a person with no capacity for civil conduct or a person with limited capacity for civil conduct causes damage to another person, he shall pay compensation from his own property.
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