Viewpoint... The divorce agreement stipulates that the ownership of the house in the name of the husband and wife can be a party to fight the real estate registration effect -- take a case of execution objection as an example.
Published:
2023-04-06
Introduction The enforcement of housing is based on the principle of real estate registration, with the exception of the housing ownership agreement. Although the agreement in the divorce agreement on the ownership of the house registered in the name of the husband and wife is binding on the two parties to the divorce, but because our country adopts the real estate ownership to register as the effective element, the application of the principle of property law, the husband and wife's agreement on the ownership of the house does not directly have the effect of the change of property rights. Therefore, if the divorce agreement attributes the house under the name of both husband and wife to one of the husband and wife but has not changed the ownership registration, the party who has not obtained the ownership of the house from the perspective of "intended debt" only relies on the agreement of the divorce agreement to claim a breakthrough in the real estate registration effect in the execution case where the creditor claims from it, which usually cannot be established and cannot prevent enforcement. On the other hand, in the execution case where the creditor claims the creditor's right to the owner of the house under the name of both husband and wife, although the ownership of the house is still registered as owned by both husband and wife, if the divorce agreement stipulates that the house belongs to the executed party, and the intention of both parties is true, the division of the ownership of the house is clear, and the transfer registration cannot be handled for their own reasons, the execution objection raised by the party who has not been owned by the divorce agreement can be excluded. Basic case Zhao and Liu were once husband and wife. Both parties registered for divorce in 2007 and signed a divorce agreement (which has been filed with the civil affairs department), agreeing that the house involved in the case purchased by both parties shall be owned by the man Zhao, and the mortgage of the house shall be later repaid by Zhao alone. Zhao paid the woman Liu 100000 yuan in one lump sum. Both parties have no other disputes. After the divorce, the woman Liu moved out of the house and returned to live in her hometown in other provinces. The man Zhao did not pay 100000 yuan. In 2022, Li mou applied for the execution of the property under Zhao mou's name due to the effective judgment. during the execution, Liu mou (Zhao mou's ex-wife), an outsider, filed an execution objection with the court, claiming that Zhao mou did not pay 100000 yuan to him and provided the property ownership certificate involved in the case (the registered owners are still Zhao mou and Liu mou) to prove that the property is still the common property of Liu mou and Zhao mou, the court was requested to retain and return the house auction money corresponding to Liu's share, and then the enforcement court ruled that the outsider Liu's execution objection was established. The author filed a lawsuit against Li mou on behalf of Li mou. the court of first instance held that the 100000 yuan agreed in the divorce agreement should be regarded as Zhao mou's discount compensation for Liu mou's share of the house. because the agreement on discount compensation for the share of the house could not be fulfilled, Liu mou still enjoys the share of the house involved and has the right to the house involved. Therefore, the court of first instance rejected Li's claim for execution objection and supported the execution objection ruling. Li refused to accept the first instance judgment, according to the law to appeal. The court of second instance held that the divorce agreement had clearly recorded that the real estate and property involved in the case were given to Zhao, Zhao paid Liu 100000 yuan in one lump sum, and Zhao was responsible for the mortgage of the real estate involved in the case. It was also impossible to change the registration of the property right of the house because the mortgage was not clear. It can be seen that Liu has given up his share of the real estate involved in the case, and Zhao has obtained full ownership of it. After nearly 14 years, Liu has claimed a share of the real estate involved in the case. There is no factual and legal basis. Liu has no legal rights and interests in the real estate involved, so he does not enjoy the corresponding share of the auction money of the real estate involved. At this point, Li's appeal request was established and supported, the first-instance judgment was revoked, and the house auction money involved in the case continued to be fully executed, which fully safeguarded the legitimate rights and interests of the parties. Key points analysis The agreement on the ownership of the house in the divorce agreement is intended to determine the debt, and China's real estate to register as an effective element, "debt" binding force can break through the effect of property rights, whether it can block the implementation, from the point of view of this case, must be based on objective facts of rigorous judgment. 1. The meaning of the house ownership agreement is true, the division is clear, and the civil affairs department records, the target property is owned by one party alone. 2. The reason why the house ownership has not been registered for change is caused by other objective factors besides the parties involved in the case. If the change cannot be made due to the unsettled mortgage, the Chinese Communist Party has established two mortgage rights in this case. The first time was established during the marriage between Zhao and Liu, and the second time was established 8 days after Zhao and Liu registered for divorce, evidence of the fact that Liu knew that the establishment of the mortgage could not handle the registration of the change of property rights of the house. 3. The party who has not obtained the property (claiming the exclusion of execution) and the party who has obtained the property (being executed) have no contact for a long time and have not claimed any rights for a long time, and the relationship between the rights and obligations of the ownership of the house has been stable for many years. 4. If there is a mortgage, whether the loan is repaid independently by the executed party. In this case, after Zhao and Liu registered for divorce, the loan of the real estate involved in the case has been repaid by Zhao independently. Legal basis The first paragraph of Article 209 of the the People's Republic of China Civil Code stipulates that the establishment, alteration, transfer and elimination of real property rights shall be effective after registration in accordance with the law; without registration, it shall not be effective, unless otherwise provided by law. At the same time, article 1065 stipulates that both men and women may agree that the property acquired during the marriage and the pre-marital property shall be owned by each other, jointly owned or partly owned by each other or partly jointly owned. 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. typical meaning The entry into force of real estate registration is not effective without registration, which is a clear stipulation of the Civil Code. Due to the absolute and dominant characteristics of real right, the entry into force and confrontation effect are obviously different from creditor's rights. Therefore, disputes involve real right. The entry into force requirement of registration is "Shangfang Baojian", which is conducive to judging the ownership of rights in mixed disputes between property and debt. According to the recent cases searched by the author, most courts have rigid understanding of real right, however, ignoring the prior expression of objective and true intention, in this case, even ignoring the examination of objective facts that cannot be changed, thus causing the judgment of the first instance of the execution objection and the execution objection to ignore important facts and be unfair. It is true that from the point of view of the person subject to execution, the identity of the co-owner of the subject matter involved in the case is used to block the execution, or it is the execution defense technology of the person subject to execution. However, as far as the agency work of the person applying for execution is concerned, the division of the scope of creditor's rights and the fixation of the payment of evidence should be further carried out, which undoubtedly increases the obligation of acting the person applying for execution or the plaintiff.
Introduction
The enforcement of housing is based on the principle of real estate registration, with the exception of the housing ownership agreement.Although the agreement in the divorce agreement on the ownership of the house registered in the name of the husband and wife is binding on the two parties to the divorce, but because our country adopts the real estate ownership to register as the effective element, the application of the principle of property law, the husband and wife's agreement on the ownership of the house does not directly have the effect of the change of property rights. Therefore, if the divorce agreement attributes the house under the name of both husband and wife to one of the husband and wife but has not changed the ownership registration, the party who has not obtained the ownership of the house from the perspective of "intended debt" only relies on the agreement of the divorce agreement to claim a breakthrough in the real estate registration effect in the execution case where the creditor claims from it, which usually cannot be established and cannot prevent enforcement. On the other hand, in the execution case where the creditor claims the creditor's right to the owner of the house under the name of both husband and wife, although the ownership of the house is still registered as owned by both husband and wife, if the divorce agreement stipulates that the house belongs to the executed party, and the intention of both parties is true, the division of the ownership of the house is clear, and the transfer registration cannot be handled for their own reasons, the execution objection raised by the party who has not been owned by the divorce agreement can be excluded.
Basic case
Zhao and Liu were once husband and wife. Both parties registered for divorce in 2007 and signed a divorce agreement (which has been filed with the civil affairs department), agreeing that the house involved in the case purchased by both parties shall be owned by the man Zhao, and the mortgage of the house shall be later repaid by Zhao alone. Zhao paid the woman Liu 100000 yuan in one lump sum. Both parties have no other disputes. After the divorce, the woman Liu moved out of the house and returned to live in her hometown in other provinces. The man Zhao did not pay 100000 yuan.
In 2022, Li mou applied for the execution of the property under Zhao mou's name due to the effective judgment. during the execution, Liu mou (Zhao mou's ex-wife), an outsider, filed an execution objection with the court, claiming that Zhao mou did not pay 100000 yuan to him and provided the property ownership certificate involved in the case (the registered owners are still Zhao mou and Liu mou) to prove that the property is still the common property of Liu mou and Zhao mou, the court was requested to retain and return the house auction money corresponding to Liu's share, and then the enforcement court ruled that the outsider Liu's execution objection was established.
The author filed a lawsuit against Li mou on behalf of Li mou. the court of first instance held that the 100000 yuan agreed in the divorce agreement should be regarded as Zhao mou's discount compensation for Liu mou's share of the house. because the agreement on discount compensation for the share of the house could not be fulfilled, Liu mou still enjoys the share of the house involved and has the right to the house involved. Therefore, the court of first instance rejected Li's claim for execution objection and supported the execution objection ruling. Li refused to accept the first instance judgment, according to the law to appeal. The court of second instance held that the divorce agreement had clearly recorded that the real estate and property involved in the case were given to Zhao, Zhao paid Liu 100000 yuan in one lump sum, and Zhao was responsible for the mortgage of the real estate involved in the case. It was also impossible to change the registration of the property right of the house because the mortgage was not clear. It can be seen that Liu has given up his share of the real estate involved in the case, and Zhao has obtained full ownership of it. After nearly 14 years, Liu has claimed a share of the real estate involved in the case. There is no factual and legal basis. Liu has no legal rights and interests in the real estate involved, so he does not enjoy the corresponding share of the auction money of the real estate involved.
At this point, Li's appeal request was established and supported, the first-instance judgment was revoked, and the house auction money involved in the case continued to be fully executed, which fully safeguarded the legitimate rights and interests of the parties.
Key points analysis
The agreement on the ownership of the house in the divorce agreement is intended to determine the debt, and China's real estate to register as an effective element, "debt" binding force can break through the effect of property rights, whether it can block the implementation, from the point of view of this case, must be based on objective facts of rigorous judgment.
1. The meaning of the house ownership agreement is true, the division is clear, and the civil affairs department records, the target property is owned by one party alone.
2. The reason why the house ownership has not been registered for change is caused by other objective factors besides the parties involved in the case. If the change cannot be made due to the unsettled mortgage, the Chinese Communist Party has established two mortgage rights in this case. The first time was established during the marriage between Zhao and Liu, and the second time was established 8 days after Zhao and Liu registered for divorce, evidence of the fact that Liu knew that the establishment of the mortgage could not handle the registration of the change of property rights of the house.
3. The party who has not obtained the property (claiming the exclusion of execution) and the party who has obtained the property (being executed) have no contact for a long time and have not claimed any rights for a long time, and the relationship between the rights and obligations of the ownership of the house has been stable for many years.
4. If there is a mortgage, whether the loan is repaid independently by the executed party. In this case, after Zhao and Liu registered for divorce, the loan of the real estate involved in the case has been repaid by Zhao independently.
Legal basis
The first paragraph of Article 209 of the the People's Republic of China Civil Code stipulates that the establishment, alteration, transfer and elimination of real property rights shall be effective after registration in accordance with the law; without registration, it shall not be effective, unless otherwise provided by law. At the same time, article 1065 stipulates that both men and women may agree that the property acquired during the marriage and the pre-marital property shall be owned by each other, jointly owned or partly owned by each other or partly jointly owned. 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.
typical meaning
The entry into force of real estate registration is not effective without registration, which is a clear stipulation of the Civil Code. Due to the absolute and dominant characteristics of real right, the entry into force and confrontation effect are obviously different from creditor's rights. Therefore, disputes involve real right. The entry into force requirement of registration is "Shangfang Baojian", which is conducive to judging the ownership of rights in mixed disputes between property and debt. According to the recent cases searched by the author, most courts have rigid understanding of real right, however, ignoring the prior expression of objective and true intention, in this case, even ignoring the examination of objective facts that cannot be changed, thus causing the judgment of the first instance of the execution objection and the execution objection to ignore important facts and be unfair. It is true that from the point of view of the person subject to execution, the identity of the co-owner of the subject matter involved in the case is used to block the execution, or it is the execution defense technology of the person subject to execution. However, as far as the agency work of the person applying for execution is concerned, the division of the scope of creditor's rights and the fixation of the payment of evidence should be further carried out, which undoubtedly increases the obligation of acting the person applying for execution or the plaintiff.
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