Civil / Yang Cheng sends reporter Dong Liu
Guangzhou person Ceng Mou, bring about oneself after divorcing for a former husband up to now " be in debt " the case rushs about.
In Guangdong and even whole nation, the person that has this lot is not little, the debt that they owe to place not know the inside story, did not sign, there is collective cap on the head -- marriage law judicatory explains 2 the 24th victims.
This year on April 1, it is explanation of marriage law judicatory 2 apply 15 years. In recent years, around among them the 24th " life and death lives or die " discuss and " fight " had not stopped all the time. Administration of justice of court of top in January 2018 people explains come on stage, declare the 24th " exist in name only " .
Current, allusion marriage family makes up civil code to lying in legislative process. Husband and wife is collective debt problem, enter legislative crossroad. Does it go to whereto?
"Be in debt " life
A paragraph of marriage, cause the life that gets Ceng Mou " one ground chicken feather " .
Ceng Mou is acquainted via person introduction and Jin Mou, registered 1985 become husband and wife. 2005, occurrence crisis of two people marriage, in those days in May, ceng Mou and husband sign agreement of belongings of husband and wife, agree Jin Mou needs every months to be reached to family expenses read for the child 10 thousand yuan graduate to child high school, all Jin Mou's outer business activities, all debt and Ceng Mou have nothing to do, bilateral creditor's rights debt is assumed severally.
On March 7, 2008, this marriage that lasted 23 years goes to the end, that day, ceng Mou and Jin Mou sign divorce agreement and divorce formalities was dealt with in Guangzhou.
However, the divorce did not bring disengagement to Ceng Mou, be nightmare instead begin.
Her former husband gold some is some company of Guangxi Wu state (the following abbreviation " Wu state some company " ) legal representative. 2007, also namely before she divorces one year, court of locality of some company Xiang Wu administrative division sues Wu state, ask Jin Mou repays two debt.
Final, the form that local court adjudicates with become effective and mediates a book affirms Jin Mou compensates for Wu city respectively some company 240 thousand Yu Yuan, more than yuan 630 thousand.
Ceng Mou is located in the one flatlet of Guangzhou to be closed down subsequently. Ceng Mou puts forward to carry out demur, think this room belongs to her herself all, jin Mou's debt belongs to its individual liabilities, have nothing to do with her, but be ruled to reject by the court.
In January 2009, ceng Mou sues a requirement to affirm more than yuan 240 thousand to court of district of Guangzhou city the Milky way, more than yuan 630 thousand belong to liabilities of former husband individual.
By 2017, the court makes become effective judgment, maintain finally belong to husband and wife joint liability, reason is: During this debt forms relation of Yu Fu wife to put add, ceng Mou view has belongings to agree, but Jin Mou still is made clear every months to give in this agreement pay 10 thousand yuan of housekeeping money, be not real significance to go up respectively belongings is made, and Ceng Mou at the beginning of 2007 one-time owe place the bank borrow money to still be borrowed end, at that time Ceng Mou and Jin Mou still are husband and wife, afore-mentioned defray belong to a family big expenditure, ceng Mou fails the income that quote confirms Jin Mou was not used at the family collective expenditure.
Of basis of become effective judicatory, be explanation of marriage law judicatory 2 the 24th.
Marriage law judicatory explains 2, came on stage 2003 by top people court, carried out on April 1, 2004.
Among them the 24th regulation: "During creditor puts add with respect to marital relation one party of husband and wife is in debt with individual name place Wu holds the right, ought to press husband and wife joint liability processing. But one party of husband and wife can prove creditor and debtor make clear an agreement to be individual liabilities, perhaps can prove to belong to marriage law the except of case of the 19th the 3rd regulation. Perhaps can prove to belong to marriage law the except of case of the 19th the 3rd regulation..
The expert expresses, its come on stage, carry out solved a few real problems.
Drafted marriage law judicatory to explain 2003 2 when, more circumstance appearing in judicatory practice is husband and wife with not for know the inside story avoid creditor, through divorce ill will move belongings gives another, so as to dodges the creditor. The 24th is born below this setting.
Solve one problem only to find another cropping up. "False divorce, true escape debt " the phenomenon gets keep within limits basically, but new issue came: Some husband and wife sign false debt intentionally before the divorce with other " hole " another, bring about other one party to be below unwitting circumstance " be in debt " .
"Exist in name only " the 24th
Actually, in recent years, the report that explains the 24th 2 brought new issues in the light of marriage law judicatory had not stopped.
According to statistic, since 2016, standing committee of countrywide National People's Congress the law is versed in appoint be aimed at the 24th nearly 1000 times when receive a citizen to put forward examine a proposal. The whole nation during two meetings, delegates of many countrywide National People's Congress also rule to table a proposal around this.
Proposal of good to do delegate and citizen investigate the conduction work of the proposal, standing committee of countrywide National People's Congress the law is versed in appoint held an informal discussion in June 2017, the delegate of National People's Congress of partial whole nation that invites to table a proposal attends, with top people court concerned branch undertakes communication study, drive solve concerned problem.
In Feburary 2017, top people court released marriage law judicatory to explain (2) additional provision, clear and false debt and illegal debt do not get protection.
"Watch of this additional provision understands people court the bright footing of negatory to false debt, illegal debt evaluation, requirement judge is in cognizance husband and wife is collective when debt must serious examine and verify, this reduces party of a few cases to preventing to mix ' be in debt ' still have certain and positive effect. But this complement regulation was not solved from hypostatic respect ' be in debt ' problem, the cognizance standard that does not have joint to husband and wife liability and quote responsibility make a change. " secretary of Party committee of academy of woman of vice-chairman of seminar of law of marriage of Chinese law society, China Professor Li Mingshun expresses to the reporter.
In December 2017, standing committee of countrywide National People's Congress the law is versed in appoint director Shen Chunyao expresses, 12 complete compatriots are big 2017 5 session, delegates of 45 countrywide National People's Congress offer 5 proposals jointly respectively, the marriage law administration of justice that the requirement makes to top people court explains the 24th 2 regulations that about husband and wife joint liability assumes undertake checkup.
Be deeply concerned to respond to a society, on January 17, 2018, top people court is released " involve case of dispute over obligation of husband and wife about cognizance the explanation of applicable law concerned problem " , in all 4, clear: One, the liability that husband and wife represents to consistent place is lost with the meaning in all is husband and wife joint liability (already " in all debt is signed in all " ) ; 2, the debt that for the family daily life place owes is husband and wife joint liability; 3, creditor can prove to belong to husband and wife to should be maintained of joint liability for joint liability; 4, suitable scope.
"This judicatory explanation was solved greatly ' be in debt ' problem, on responsibility of the cognizance principle of joint liability, quote, strode to right way one stride. Since I think to carry out, the effect is good. " Li Mingshun says.
Guangdong saves You Zhilong of chairman of committee of major of law of family of bar association marriage's lawyer to express to the reporter, explanations of afore-mentioned new administration of justice set the 4th times " the relevant judicatory explanation that top people court makes before this and explain balance is touched originally, it is with this explanation accurate " , proclaimed actually marriage law judicatory explains 2 the 24th " death " .
"Was in before dawn. " Ceng Mou not without deep feeling: Final judgment of court of the Guangzhou end 2017 adjudicated her case, before long, explanation of new administration of justice came on stage.
Toward where will legislation go?
Future, is the legislative direction of joint liability in husband and wife where?
Li Mingshun tells a reporter, through legislative seminar delibrate, scholars formed a few consensus at present: It is the debt that is used at generation of daily life place, ought to with maintaining husband and wife joint liability is liabilities of principle, individual to be exception. 2 it is the debt besides daily life, ought to be exception in order to hold individual debt for principle, joint liability.
That is to say, exceeded the debt that place of daily life limits owes husband and wife, in principle ought to be maintained for liabilities of individual of husband and wife, only a few kinds of circumstances can be maintained for joint liability ▼
It is to belong to husband and wife to agree to consider denotive debt in all, namely in all debt is signed in all;
2 it is creditor can prove debt is used at the debt that husband and wife lives jointly or other one party of husband and wife is the person that be benefited, right now, can be in be benefited maintain inside limits for husband and wife joint liability;
3 it is the liability that action of joint tort be executived by guardian brings, in principle ought to belong to joint liability, the child that guards jointly for instance mauls the liability that other child creates;
4 it is husband and wife is used at the debt that manages jointly, this wants greatly by creditor quote.
December 2018, standing committee of countrywide National People's Congress the law is versed in appoint the office of Guangdong statecraft attorney that will to You Zhilong be in about chief, with respect to civil code allusion marriage family writes husband and wife work of joint liability legislation undertakes special subject survey.
On the informal discussion, you Zhilong put forward to suggested at 7 o'clock. About by guardian the debt of tort, you Zhilong undertook refining:
Relation of husband and wife is normal, belong to the debt that joint custody not do one's best causes, can regard husband and wife as joint liability. For example, husband and wife has not divorce, the child of joint custody mauls the liability that other child creates, belong to husband and wife joint liability;
But spouse concern is abnormal, during for instance husband and wife lives apart or after the divorce, one party rejects children of another close, visit, bring about other one party cannot normal exercise guards duty, the child below one party custody is in debt because of tort place Wu, unfavorable as joint liability.
You Zhilong still puts forward, because one party of husband and wife assumes the liability that legal duty to rear produces, in principle cannot regard husband and wife as joint liability, for instance, one party of husband and wife is defray, right to parental solatium the alimony defray that gives birth to children with ex-wife place.
Li Mingshun says: "Attention of society of joint debt problem spends husband and wife tall, it is certain in prospective legislation that I believe legislature meeting response society is deeply concerned.
Origin | Yang Cheng is sent
Picture | Visual China (graph article has nothing to do)
Editor-in-charge | Cui Wencan
Trainee | Zhou Zihou
