Viewpoint... typical case study: the identification of the joint debt of husband and wife in consumer loan contract disputes.
Published:
2024-07-05
The determination of the joint debt of husband and wife is a common controversial issue in China's judicial practice, with the promotion of consumer finance business by major financial institutions and companies, the problem of husband and wife debt burden caused by consumer loan contract disputes has once again become the focus of discussion.
The determination of the joint debt of husband and wife is a common controversial issue in China's judicial practice, with the promotion of consumer finance business by major financial institutions and companies, the problem of husband and wife debt burden caused by consumer loan contract disputes has once again become the focus of discussion. The people's Court of Haidian District of Beijing has issued a number of typical cases in view of the financial disputes arising from the credit consumer loan business, one of which is to take the determination of the joint debt of husband and wife as the focus of the dispute, which has strong practical guidance. it also has a certain reference significance for the post-loan disposal and front-end improvement of consumer financial business.
Brief Analysis of 1. Typical Cases
(I) brief
[Case No.:(2020) Beijing 0108 Minchu No. 11169; Trial court: Haidian District People's Court of Beijing]]
Chen and Sun are husband and wife. On August 18, 2017, Chen signed a "maximum loan contract" with a bank, with a credit line of up to 300000 yuan for personal consumption loans (limited to personal and household consumption). It also stipulates interest, penalty interest, compound interest, repayment methods and liability for breach of contract. After signing the above contract, Chen submitted a total of 299900 yuan loan application to a bank from August to September 2018, and a bank issued the corresponding amount to the account designated by Chen after approval. In the course of performing the contract, Chen did not repay the money as agreed. As of July 21, 2021, Chen still owes a bank loan principal of 299,900 yuan and related interest (including penalty interest and compound interest).
A bank claimed in the lawsuit that the loan involved in the case was used for the husband and wife to live together. According to the relevant provisions of the Civil Code, it belonged to the joint debt of Chen and Sun. In this regard, Sun had objections and argued that he and Chen were registered for marriage in November 2010 and agreed to divorce in February 2019. Although the debt involved in the case occurred during the existence of the relationship between husband and wife, he did not know and agree to the corresponding loan, nor did he sign and confirm it in the loan contract involved in the case. Moreover, all the money borrowed by Chen was used to repay his personal debts and was not used for family life together, therefore, the debt involved in the case is not a joint debt of the husband and wife. After investigation and verification by the court, after receiving the above-mentioned loan, Chen did not transfer the money to Sun or for family life, and successively transferred the money to his own name or the name of the fund management company outside the case.
(II) Referee Reason
After hearing, the court held that the loan contract signed between Chen and a bank was proved by evidence to be the true intention of both parties. The content did not violate the mandatory provisions of laws and administrative regulations, and should be legal and effective, and all parties should strictly abide by it and perform it in a comprehensive and timely manner according to the contract. After the contract is signed, a bank fulfills its contractual obligations and issues the corresponding loans on time. Chen's failure to fulfill his repayment obligations as agreed is a breach of contract and should be liable for breach of contract.
However, the disputed loan contract in this case was signed by Chen Mou, and the disputed loan was also issued to Chen Mou's designated account. Sun Mou did not sign and approve the corresponding loan contract and creditor's rights certificate, nor did he issue any written commitment to confirm that the corresponding debt belongs to the joint debt of husband and wife. Although the loan contract involved in the case states that the use of the loan is limited to personal and family consumption, however, according to the evidence submitted by the bank, it is not possible to prove that the money in dispute was actually used in the daily life or joint production and operation of Chen and Sun's family, that is, a bank cannot prove that the debt belongs to the joint debt of husband and wife, so it should bear the adverse consequences of not being able to prove.
To sum up, the court ruled that Chen Mou should repay the principal of a bank loan of 299900 yuan and the corresponding interest, penalty interest and compound interest, and rejected a bank's claim that Sun Mou should bear the joint repayment responsibility for the above-mentioned debts.
2. mainstream referee view
The discussion of the joint debt of husband and wife, mostly occurred in private lending disputes, heirs debt settlement disputes and other cases, but also partly exist in financial loan contract cases, especially in individual loan cases, the problem is a more common dispute in China's judicial practice. The debt incurred by one of the spouses during the marriage does not necessarily belong to the joint debt of the husband and wife. To determine whether it belongs to the joint debt of husband and wife, on the one hand, it is necessary to take into account the protection of the creditor's trust interest, I .e. the clear agreement on the purpose of the loan in the contract (the daily needs of the family), the existence of the relationship between husband and wife when the loan occurs, and the recognition of the borrower's spouse on the fact of the loan, etc., to prove that the creditor has reason to believe that the borrower is responsible for the loan based on the expenses of the husband and wife and wife, consideration needs to be given to avoiding the debtor's spouse from assuming additional debt that should not have been borne by him, I .e., an expression of intent made by the non-borrower's spouse himself, the spouse's lack of knowledge of the debt, and the flow of borrowing funds that is not part of the family's common living expenses. In judicial practice, the people's court's decision on the determination of the joint debt of the husband and wife can be summarized as the following criteria:
The first is "common meaning", that is, based on the joint meaning of the husband and wife, the debt is the joint debt of the husband and wife. "Joint meaning" refers to the joint signature of the husband and wife, the joint written commitment of the husband and wife, and the prior signature of one of the husband and wife and the other husband and wife after the ratification of the other party, such as the express or implied form of joint burden of debt.
Second, it is used for household consumption or production and operation. In judicial practice, regardless of whether the debt incurred by one of the spouses in his or her own name exceeds the daily needs of the family, but as long as it is used for the joint living and consumption of the husband and wife, joint production and operation, or one party's debt production and operation but its profits are used for the joint living and consumption of the family, the people The court determined that the debt involved in the case is the joint debt of the husband and wife, otherwise it will be recognized as the personal debt of the husband and wife.
Third, the creditor proves that the debt is used for the daily needs of the family. Article 1064, paragraph 2, of the Civil Code clearly stipulates that "the debts incurred by one of the spouses during the marriage relationship that exceed the daily needs of the family in his own name are not joint debts of the husband and wife; however, the creditor can prove that the debt is used for the husband and wife. Except for joint life, joint production and operation, or based on the joint intention of both spouses". Therefore, debts that exceed the daily needs of the family should, in principle, belong to the borrower's personal debt, except where the creditor can prove that the debt is indeed used for the joint life of the husband and wife or the joint production and operation of the husband and wife. For example, in the above-mentioned typical case of (2020) Beijing 0108 Minchu No. 11169 issued by the Haidian District People's Court, the People's Court held that the corresponding borrowing purposes under the Maximum Debt Contract were stated as other consumption and were not clearly used for household daily consumption. Combined with the capital flow of the corresponding borrowing, after Chen received the corresponding borrowing, all of them are transferred to other bank accounts in their personal name or used in the designated account for loan repayment, and it is not possible to determine that the corresponding debt is a debt for the daily needs of the family. In the end, the Haidian District People's Court ruled that "the existing evidence submitted by a bank is not sufficient to prove that the debt was used for the joint life of the husband and wife, joint production and operation, or based on the common intention of the husband and wife, it should bear the legal consequences of the inability to provide evidence". Not to support a bank's request for Sun to bear the joint repayment responsibility for the debts involved in the case.
The application of the joint debt of husband and wife in the judicial practice of 3. consumer finance business
Article 1064 of the Civil Code on the joint debt of the husband and wife makes it clear that the creditor shall bear the burden of proof for the joint debt of the husband and wife. In the consumer loan business, in order to protect the legitimate rights and interests of financial institutions and consumer finance companies as creditors, avoid the risk of some debtors evading execution through divorce or transferring property to their spouses, and achieve the purpose of recognizing the loan as the joint debt of husband and wife (even if both parties have divorced at the time of repayment, either party still needs to repay the debt), the safest way is to "co-sign debts together", that is to say, financial institutions and consumer finance companies are required to exercise more prudent care during the loan review stage, ensuring that the debt is formed by means of the borrower's spouse signing the loan contract, issuing a joint repayment commitment, signing a joint debt statement, etc. to ensure that the debt is the common intention of both husband and wife, and that the loan can be recognized as the joint debt of husband and wife.
Therefore, from the perspective of post-loan collection and litigation interest protection, it is recommended that financial institutions, consumer finance companies and other creditors improve the approval process at the front end of loan review. If only the borrower's personal signature has occurred in the loan contract, the borrower's spouse can actively supplement the evidence of ratification of the loan contract afterwards. The ratification can be expressed in written or oral forms, express or implied ways, and is not limited to the written loan confirmation documents issued by the borrower's spouse, for example, the borrower's spouse has voluntarily repaid part and all the loans, it is also used as evidence to determine that the borrower's spouse has ratified the debt involved and is willing to share it.
It should also be noted that Article 34 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code stipulates: "One spouse colludes with a third party to fabricate a debt, and the third party claims that the debt is The people's court will not support the joint debt of the husband and wife. If one of the spouses is in debt in gambling, drug abuse and other illegal and criminal activities, and the third party claims that the debt is the joint debt of the husband and wife, the people's court will not support it." If one of the spouses has malicious collusion with a third party and fictitious marital debts through false litigation, it should not be recognized as a joint debt of the husband and wife; if the loan of one of the spouses is used for illegal and criminal activities such as gambling and drug abuse, it must not be recognized as a joint debt of the husband and wife. This provision imposes a higher degree of duty of care on creditors such as financial institutions and consumer finance companies to clarify the relationship between creditor's rights and debts and to identify the qualifications of debtors when approving loans.
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