Civil and Commercial Perspective... One of the spouses is required to pay compensation in an incidental civil lawsuit for a crime, and the spouse is required to retain more property, and the application for the division of the joint property of the husband and wife in the marriage can be supported.
Published:
2022-04-30
Brief description of case Zhang Qingshan and Li Jing got married in 2010 and gave birth to a man and a woman together after marriage. At about 19:00 on April 27, 2021, Zhang Qingshan drank and drove a two-wheeled motorcycle without a license plate. The victims Jiang Moumou (female, 63 years old) and Chen Moumou (male, 42 years old) who were walking in the same direction on a certain road were injured by two mother and son. Jiang Moumou died after rescue. The public security organs determined that Zhang Qingshan bear full responsibility for the accident. The procuratorate believes that Zhang Qingshan's traffic accident caused by driving a vehicle in violation of traffic laws and regulations, resulting in one death and one injury, should be investigated for criminal responsibility for the crime of causing traffic accidents. The court was asked to sentence Zhang Qingshan to two years and six months in prison in accordance with the provisions of Article 133 and the third paragraph of Article 67 of the the People's Republic of China Criminal Law. The plaintiffs of the incidental civil action, Chen Mouwen and Chen Moumou, filed an incidental civil action with the court, requesting Zhang Qingshan to compensate Jiang Moumou for death compensation, funeral expenses, medical expenses and other economic losses totaling 970387.58 yuan. Chen Moumou filed an incidental civil lawsuit to the court, petitioning Zhang Qingshan to compensate for medical expenses, food subsidies, nursing expenses, lost work expenses, and transportation expenses, totaling 12193.75 yuan. The court held that Zhang Qingshan constituted a traffic accident crime and should be punished in accordance with the law and sentenced Zhang Qingshan to 2 years in prison. Zhang Qingshan was also sentenced to compensate the plaintiffs of the incidental civil action Chen Mouwen and Chen Moumou for medical expenses, death compensation, and funeral expenses, totaling 970387.58 yuan; Zhang Qingshan was sentenced to compensate the plaintiff of the incidental civil action Chen Moumou for medical expenses, food subsidies, Nursing expenses, lost work expenses, transportation expenses, a total of 12193.75 yuan. For this reason, Li Jing, Zhang Qingshan's spouse, wanted to keep more property and applied to the court for the division of the couple's common property. Can the consultation be supported? Lawyer's opinion First of all, according to the provisions of the the People's Republic of China Civil Code, the request for the division of the joint property of husband and wife should be a legal fact of divorce, or there are major reasons. Secondly, the material reason cannot be extended. The major reason is: one party has hidden, transferred, sold, destroyed, squandered the joint property of the husband and wife, or forged the joint debt of the husband and wife, etc., which seriously damages the interests of the joint property of the husband and wife, or when the person with the legal maintenance obligation suffers from a major illness and needs medical treatment, If he does not agree to pay the relevant medical expenses, he may propose to divide the joint property of the husband and wife within marriage. In other circumstances, the joint property of the husband and wife shall not be divided. Third, because in this case Li Jing is due to the spouse Zhang Qingshan crime need to pay compensation in the incidental civil action, Li Jing in order to retain more property, the application for the division of the joint property of the husband and wife, the application is not a major reason for the division of the joint property of the husband and wife within the marriage. Finally, when the people's court executes the judgment of incidental civil action, it will refer to the Supreme People's Court's "Several Provisions on the Partial Execution of Criminal Judgments Involving Property" to leave property for the family members of the person subject to execution that meets their basic living needs. Judicial Viewpoint of the Supreme People's Court If there is no agreed property system between husband and wife, the system of joint income after marriage is implemented, the most typical form of which is the common ownership of husband and wife. The request for division of the joint property of the husband and wife shall be "the loss of the common basis or there is a significant reason". For the husband and wife, the loss of the common basis should be the legal fact that divorce has occurred, and the reason for dividing the common property of the husband and wife without divorce is not valid. From the technical point of view of "legislation", after listing the above two "major reasons", the judicial interpretation does not have a general clause or adopt the word "etc", so as to give the applicable person flexibility according to the specific circumstances of the case. However, legislators mainly consider that the common property of husband and wife is the main economic basis for maintaining the family life of the marriage parties. Easily shaking this foundation will have a negative impact on the marriage and family life of the parties and the relationship between husband and wife. Therefore, in the case of no divorce, the division of the joint property of husband and wife through litigation is a very special case, and the scope of application shall not be expanded without authorization. When one of the spouses commits an intentional crime and needs to pay a huge amount of compensation in a criminal incidental civil action, the people's court shall not support the application for the division of the joint property of the husband and wife for the purpose of keeping more property for themselves, including their minor children. When executing a judgment in an incidental civil action, the people's court will not take the personal property of other family members of the person subject to execution as the subject of execution; if the joint property of husband and wife is executed, it will also leave property to the family members of the person subject to execution that meets their basic living needs. Legal provisions 1. Article 203 of the Civil Code stipulates that if the co-owners agree not to divide the shared real or movable property in order to maintain the common relationship, they shall follow the agreement, but if the co-owners have major reasons to need to divide, they may request division. If there is no agreement or the agreement is unclear, the co-owners may request division at any time, and the co-owners may request division when the basis of sharing is lost or there are major reasons for division. If the division causes damage to other co-owners, compensation shall be paid. 2. Article 1062 of China's Civil Code stipulates that the following property acquired by husband and wife during the marriage relationship shall be the joint property of husband and wife and shall be jointly owned by husband and wife: (I) wages, bonuses and remuneration for labor services; Income from (II) production, operation and investment; Proceeds from the (III) of intellectual property rights; Property inherited or donated by the (IV), except as provided in Item 3 of Article 1063 of this Law; (V) other property which shall be owned jointly. Husband and wife have equal rights to dispose of common property. 3. Article 1066 of the Civil Code stipulates that during the existence of the marriage relationship, under any of the following circumstances, one of the spouses may request the people's court to divide the common property: One of the (I) parties has concealed, transferred, sold off, destroyed, squandered the joint property of the husband and wife, or forged the joint debts of the husband and wife, which seriously damages the interests of the joint property of the husband and wife; (II) a person with a legal maintenance obligation suffers from a major illness and needs medical treatment, the other party does not agree to pay the relevant medical expenses. 4. Article 9 of the Supreme People's Court's "Several Provisions on the Partial Execution of Criminal Judgments Involving Property" stipulates that if a sentence of confiscation of property is imposed, the property legally owned by the person subject to execution shall be executed when the criminal judgment takes effect. In the execution of the penalty of confiscation of property or fine, the living expenses of the person subject to execution and his dependent family members shall be retained with reference to the minimum living expenses of the local residents of the previous year announced by the government of the place where the dependants live.
Brief description of case
Zhang Qingshan and Li Jing got married in 2010 and gave birth to a man and a woman together after marriage. At about 19:00 on April 27, 2021, Zhang Qingshan drank and drove a two-wheeled motorcycle without a license plate. The victims Jiang Moumou (female, 63 years old) and Chen Moumou (male, 42 years old) who were walking in the same direction on a certain road were injured by two mother and son. Jiang Moumou died after rescue. The public security organs determined that Zhang Qingshan bear full responsibility for the accident. The procuratorate believes that Zhang Qingshan's traffic accident caused by driving a vehicle in violation of traffic laws and regulations, resulting in one death and one injury, should be investigated for criminal responsibility for the crime of causing traffic accidents. The court was asked to sentence Zhang Qingshan to two years and six months in prison in accordance with the provisions of Article 133 and the third paragraph of Article 67 of the the People's Republic of China Criminal Law.
The plaintiffs of the incidental civil action, Chen Mouwen and Chen Moumou, filed an incidental civil action with the court, requesting Zhang Qingshan to compensate Jiang Moumou for death compensation, funeral expenses, medical expenses and other economic losses totaling 970387.58 yuan. Chen Moumou filed an incidental civil lawsuit to the court, petitioning Zhang Qingshan to compensate for medical expenses, food subsidies, nursing expenses, lost work expenses, and transportation expenses, totaling 12193.75 yuan. The court held that Zhang Qingshan constituted a traffic accident crime and should be punished in accordance with the law and sentenced Zhang Qingshan to 2 years in prison. Zhang Qingshan was also sentenced to compensate the plaintiffs of the incidental civil action Chen Mouwen and Chen Moumou for medical expenses, death compensation, and funeral expenses, totaling 970387.58 yuan; Zhang Qingshan was sentenced to compensate the plaintiff of the incidental civil action Chen Moumou for medical expenses, food subsidies, Nursing expenses, lost work expenses, transportation expenses, a total of 12193.75 yuan.
For this reason, Li Jing, Zhang Qingshan's spouse, wanted to keep more property and applied to the court for the division of the couple's common property. Can the consultation be supported?
Lawyer's opinion
First of all, according to the provisions of the the People's Republic of China Civil Code, the request for the division of the joint property of husband and wife should be a legal fact of divorce, or there are major reasons.
Secondly, the material reason cannot be extended.
The major reason is: one party has hidden, transferred, sold, destroyed, squandered the joint property of the husband and wife, or forged the joint debt of the husband and wife, etc., which seriously damages the interests of the joint property of the husband and wife, or when the person with the legal maintenance obligation suffers from a major illness and needs medical treatment, If he does not agree to pay the relevant medical expenses, he may propose to divide the joint property of the husband and wife within marriage. In other circumstances, the joint property of the husband and wife shall not be divided.
Third, because in this case Li Jing is due to the spouse Zhang Qingshan crime need to pay compensation in the incidental civil action, Li Jing in order to retain more property, the application for the division of the joint property of the husband and wife, the application is not a major reason for the division of the joint property of the husband and wife within the marriage.
Finally, when the people's court executes the judgment of incidental civil action, it will refer to the Supreme People's Court's "Several Provisions on the Partial Execution of Criminal Judgments Involving Property" to leave property for the family members of the person subject to execution that meets their basic living needs.
Judicial Viewpoint of the Supreme People's Court
If there is no agreed property system between husband and wife, the system of joint income after marriage is implemented, the most typical form of which is the common ownership of husband and wife. The request for division of the joint property of the husband and wife shall be "the loss of the common basis or there is a significant reason". For the husband and wife, the loss of the common basis should be the legal fact that divorce has occurred, and the reason for dividing the common property of the husband and wife without divorce is not valid.
From the technical point of view of "legislation", after listing the above two "major reasons", the judicial interpretation does not have a general clause or adopt the word "etc", so as to give the applicable person flexibility according to the specific circumstances of the case. However, legislators mainly consider that the common property of husband and wife is the main economic basis for maintaining the family life of the marriage parties. Easily shaking this foundation will have a negative impact on the marriage and family life of the parties and the relationship between husband and wife. Therefore, in the case of no divorce, the division of the joint property of husband and wife through litigation is a very special case, and the scope of application shall not be expanded without authorization.
When one of the spouses commits an intentional crime and needs to pay a huge amount of compensation in a criminal incidental civil action, the people's court shall not support the application for the division of the joint property of the husband and wife for the purpose of keeping more property for themselves, including their minor children.
When executing a judgment in an incidental civil action, the people's court will not take the personal property of other family members of the person subject to execution as the subject of execution; if the joint property of husband and wife is executed, it will also leave property to the family members of the person subject to execution that meets their basic living needs.
Legal provisions
1. Article 203 of the Civil Code stipulates that if the co-owners agree not to divide the shared real or movable property in order to maintain the common relationship, they shall follow the agreement, but if the co-owners have major reasons to need to divide, they may request division. If there is no agreement or the agreement is unclear, the co-owners may request division at any time, and the co-owners may request division when the basis of sharing is lost or there are major reasons for division. If the division causes damage to other co-owners, compensation shall be paid.
2. Article 1062 of China's Civil Code stipulates that the following property acquired by husband and wife during the marriage relationship shall be the joint property of husband and wife and shall be jointly owned by husband and wife:
(I) wages, bonuses and remuneration for labor services;
Income from (II) production, operation and investment;
Proceeds from the (III) of intellectual property rights;
Property inherited or donated by the (IV), except as provided in Item 3 of Article 1063 of this Law;
(V) other property which shall be owned jointly.
Husband and wife have equal rights to dispose of common property.
3. Article 1066 of the Civil Code stipulates that during the existence of the marriage relationship, under any of the following circumstances, one of the spouses may request the people's court to divide the common property:
One of the (I) parties has concealed, transferred, sold off, destroyed or squandered the joint property of the husband and wife, or forged the joint debts of the husband and wife, which seriously damages the interests of the joint property of the husband and wife;
(II) a person with a legal maintenance obligation suffers from a major illness and needs medical treatment, the other party does not agree to pay the relevant medical expenses.
4. Article 9 of the Supreme People's Court's "Several Provisions on the Partial Execution of Criminal Judgments Involving Property" stipulates that if a sentence of confiscation of property is imposed, the property legally owned by the person subject to execution shall be executed when the criminal judgment takes effect. In the execution of the penalty of confiscation of property or fine, the living expenses of the person subject to execution and his dependent family members shall be retained with reference to the minimum living expenses of the local residents of the previous year announced by the government of the place where the dependants live.
Key words:
Related News
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
