Top people court
Acceptance of one party of husband and wife with husband and wife common property assumes joint liability to assure external, other one party need not assume joint liability after the divorce
Juridical argument
Although both sides of husband and wife is put in close person relationship, but the civil action capacity that its have independence severally, the civil law relationship that just establishs is not reached of course at the spouse. Because with husband and wife common property assumes what joint liability assures this one, the spouse after the divorce does not need to assume responsibility of implicative pay off.
Brief introduction of details of a case
One, on August 8, 2012, feng Peixiang (Party A) with Yu Deshui (Party B) , company of weather government office (third square) , great Xin company (third square) sign " agreement " , set among them: "1. The investment fund that Party A will be in company of weather government office makes over Party B one hundred and forty-nine million seven hundred and fifty thousand yuan, pay Party A one hundred and forty-nine million seven hundred and fifty thousand yuan by Party B. 2. Party B with husband and wife common property assures to fulfilling this agreement to offer joint liability. " water of heart of Party B anxiety and Qin of its wife king are in this " agreement " on autograph.
2, on August 31, 2012, yu Deshui and king Qin deal with divorce formalities in civil administration bureau.
3, hind Feng Peixiang and Yu Deshui because " agreement " effectiveness generates controversy. In September 2012, feng Peixiang to forensic to lodge a complaint, water of requirement anxiety heart pays transfer a money, wang Qin assumes responsibility of implicative pay off. Court decision of court of first instance: Wang Qin assumes responsibility of implicative pay off to Yu Deshui's debt.
4, Wang Qin refuses to obey appeal to the supreme court, highest courtyard 2 careful change the original sentence, wang Qin need not assume responsibility of implicative pay off to Yu Deshui's debt.
The judgment wants a place
Forensic first instance thinks, on August 8, 2012, case experience " agreement " the Wang Qin when signing and husband and wife of Yude water system concern. " agreement " the 5th agreement: "Water of heart of Party B anxiety with husband and wife common property assures to fulfilling this agreement to offer joint liability " , wang Qin, Yu Deshui all is on this agreement sign give affirm, sign to regard as namely approbate assure establish, reason " agreement " place experience about Wang Qin assure the clause is effective. According to the agreement of this clause, wang Qin offers assure means assures to assure, make sure responsibility means assures for joint liability.
The supreme court denied in 2 careful train of thought of first instance judgment, think: " agreement " Wang Qin does not include in stated contract party, wang Qin is in " agreement " did not make a meaning express to approbate his to assume assure jointly. To the property of behavior of king Qin autograph, should maintain be based on the husband and wife between its and Yu Deshui to concern for the department, deal with to one party of husband and wife common property identifies husband and wife really, namely affirmatory to Yu Deshui with husband and wife common property is offerred assure behavior admits really. Although Wang Qin and anxiety heart water are put in identity of husband and wife to concern, but the civil action capacity that its have independence, yu Deshui is in " agreement " in the civil law relationship that establish does not reach Yu Wangqin of course. Because Wang Qin is in " agreement " in not affirmatory it is contract obligation to offer with its individual name assure jointly responsibility, cognizance king Qin offerred first trial court to assure to assure mistake, this academy gives correct.
Solid Wu experience is summed up
One, both sides of loan demand husband and wife assumes what assure responsibility jointly to debt jointly, ought to ask both sides of husband and wife signs not only and both sides of need husband and wife all is in assure make clear in the contract make assume the meaning that assures responsibility jointly to express.
Although be below the circumstance that does not have extraordinary agreement, the property that husband and wife acquires after bilateral marriage all belongs to husband and wife common property. During if be in,marital relation puts add, both sides of husband and wife is in assure word of contract be the lucky number, all approbate on behalf of both sides namely with husband and wife common property offers the fact that assure. But if one party of husband and wife only with husband and wife common property is offerred assure, cannot ask other one party is assumed after the divorce assure responsibility jointly, can ask its are in only husband and wife assumes finite pay off responsibility inside limits of common property intersected. The point of view of this one judge of the supreme court is meant with husband and wife common property is offerred assure, the just increases newly again property profit after the belongings before marriage perhaps divorces all cannot be brought into assure belongings limits, the rights and interests of creditor right now unavailable also the most sufficient safeguard. If husband and wife is bilateral,all assume clearly in the agreement assure responsibility jointly, even if is divorce hind, creditor still enjoys a request to random of husband and wife its assume the right that assures responsibility jointly, the method that this widened creditor requests to realize creditor's rights not only still increases the likelihood that promoted creditor creditor's rights implementation.
2, one party of husband and wife signs another times when common property assumes joint liability to be represented only with husband and wife right with husband and wife common property is offerred assure behavior admits really, need not assume after the divorce assure responsibility jointly, must satisfy certain premise requirement. The one party after the divorce need not assume assure the premise of responsibility is:
1, both sides of husband and wife is when the divorce " divorce agreement " in definite agreement " break up without common property, break up without collective deposit, break up without collective creditor's rights, break up without joint liability " ;
2, case experience interest was not used at husband and wife to live jointly;
3, assure other one party of the husband and wife on the agreement did not appear as the party that assure.
Relevant law sets
" assure law "
The 18th party agrees in assuring a contract guarantor and debtor assume joint liability to debt, assure for joint liability.
" marriage law "
During the 19th husband and wife can agree marital relation puts add the belongings before the belongings of earning and marriage returns collective and respective and all, all or the part is respective the part is collective and all, all. The agreement ought to use written form. Ambiguous without agreement or agreement, applicable Benfadi seventeen, the 18th regulation. During husband and wife puts add to marital relation the agreement of the belongings before the belongings of earning and marriage, have sanction to both sides. During husband and wife puts add to marital relation, the belongings agreement of earning returns respective all, husband or wife the debt that one party owes external, the 3rd person knows this agreement, with husband or wife an all belongings pay off.
When the 41st divorce, it is the debt that collective life place owes husband and wife formerly, ought to repay jointly. Common property is not worth pay off, or belongings returns respective all, by bilateral agreement pay off; When the agreement won'ts do, by people court court decision.
" the explanation that top people court involves statute of comfortable use of case of dispute over obligation of husband and wife to concern an issue about cognizance " (2018)
Both sides of the first husband and wife signs jointly or represent a negative liability admit posthumously of after the event of one party of husband and wife with the meaning in all, ought to maintain for husband and wife joint liability.
One party of the 2nd husband and wife is put in marital relation the family is with individual name during add the debt that daily life needs to lose, creditor the right holds in order to belong to husband and wife for joint liability, people court should grant to support.
One party of the 3rd husband and wife is put in marital relation the family is exceeded with individual name during add the debt that daily life needs to lose, creditor the right holds in order to belong to husband and wife for joint liability, people court does not grant to support, but creditor can prove this debt is used at husband and wife to collective life, joint production is managed or be based on both sides of husband and wife common meaning is denotive except.
Try level in the court for this case below, in judgment " this academy thinks " the treatise with respect to this problem:
According to the case fact that this case finds out, yu Deshui is in " agreement " in acceptance " with husband and wife common property is opposite fulfill this agreement to offer joint liability to assure " , yu Deshui is experience case " agreement " debtor, its this meaning expresses to should be maintained to its for the department debt establishs belongings to assure for creditor. Experience case " agreement " the Wang Qin when signing and husband and wife of Yude water system concern, " agreement " Wang Qin does not include in stated contract party, wang Qin is in " agreement " in express without any meanings, be in only this " agreement " on have sign one's name. To the property of behavior of king Qin autograph, should maintain be based on the husband and wife between its and Yu Deshui to concern for the department, deal with to one party of husband and wife common property identifies husband and wife really, namely affirmatory to Yu Deshui with husband and wife common property is offerred assure behavior admits really. Although Wang Qin and anxiety heart water are put in identity of husband and wife to concern, but the civil action capacity that its have independence, yu Deshui is in " agreement " in the civil law relationship that establish does not reach Yu Wangqin of course. Because Wang Qin is in " agreement " in not affirmatory it is contract obligation to offer with its individual name assure jointly responsibility, cognizance king Qin offerred first trial court to assure to assure mistake, this academy gives correct. Feng Peixiang lawsuit advocates Wang Qin assumes this case to assure jointly the litigant request of responsibility, because do not have contract and legal basis, should give lawfully reject, king Qin appeal puts forward the litigant request that cancel court of first instance adjudicates to its, this academy gives support.
Outspread read
Made on January 17, 2018 " the explanation that top people court involves statute of comfortable use of case of dispute over obligation of husband and wife to concern an issue about trying " changed " top people court about marriage law of applicable ﹤ People's Republic of China ﹥ the explanation of a certain number of problems (2) : "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. " the debt that during eliminating to put add in marriage, husband and wife owes with individual name place is direct and illative for husband and wife the view of joint liability, reduced the spouse that did not participate in creditor's rights debt to form relatively square quote responsibility, assume certain proof debt to be used at the responsibility that husband and wife lives jointly by creditor, accord with to hold the responsibility of whose quote, at the same time creditor can prove through quote debt is used at debt square husband and wife to live jointly, also flank gifted creditor judicatory relieves a way. Accordingly, submit to what article reader notices is, count a legal precedent to explain in new administration of justice setting falls below, may produce a certain number of new change.
One, the debt that assure can be maintained common to husband and wife property is influentially for husband and wife joint liability, the one party after the divorce still needs to assume repay responsibility
Case one: The enterprise such as Li Wenlong and the king Lang that top people court makes, king Lang, Li Wenlong is leasehold dispute application rehear is civil ruling book [(2015) civilian explain word the 752nd] think: "Can deny in the assure debt of this case about Xie Kai it is husband and wife surely the problem of joint liability. Xie Kai is large stockholder of joyous amusement company and legal representative, below the case that proves without contrary evidence, should illative profit of joyous amusement company is used at husband and wife to live jointly. That is to say, how many what joyous amusement company manages a state to affect large stockholder to thank triumphant individual to gain profit directly, also husband and wife is collective during meeting and Xie Kai and relation of king Lang marriage put add of belongings how many have immediate concern, xie Kai is offerred for joyous amusement company assuring is for the company manage, also be for individual interest. Tell from this angle, the individual liabilities that because assure, Xie Kai experience case loan forms, maintain for husband and wife joint liability is reasonable. Wang Lang thanks triumphant loan of the case that it is experience assures the viewpoint that as collective as its husband and wife life did not concern cannot hold water. Should deny the problem that assumes responsibility in this case about Wang Lang. Basis " marriage law a certain number of explanations (2) " the 24th regulation, one party of cognizance husband and wife is in debt with individual name place Wu presses husband and wife joint liability processing has two exceptional state, it is one party of husband and wife can prove creditor and debtor make clear an agreement to be individual liabilities; 2 it is both sides of husband and wife the agreement is executed respectively belongings is made and creditor knows this agreement. The Wang Lang in this case maintains presence the first kind of case. On April 8, 2014 " agreement " in concerned Xie Kai " the share with its hold and place of company of individual asset pay off owe Li Wenlong principal and interest " agreement, the asset of Xie Kai's individual that 2 careful court thinks this clause is medium should be distinction at husband and wife of company worth and rather than the meaning of common property expresses. This academy thinks, xie Kai is concerned in this clause " individual asset " the agreement is not particularly clear distinction Yu Fu wife is collective belongings, wang Lang does not have the circumstance of more testimony evidence to fall, 2 careful adjudicate maintain and do not have misgivings. 2 careful adjudicate maintain and do not have misgivings..
2, one party of husband and wife assumes those who assure responsibility external, the spouse participated in loan process actually ought to assume collective reimbursement responsibility
Case 2: Nimble of Cheng of the summit of tall hard gold that top people court makes, a surname wait for rehear of application of civilian leasehold dispute with nimble of peak of tall hard gold, Pei Cheng civil ruling book [(2015) civilian explain word the 1892nd] think: "Whether should the peak assume reimbursement responsibility about Qiao Yu. In this case, the wife that peak of tall hard gold regards Cheng of a surname of legal representative of company of 100 hard gold as nimble reachs staff of company of 100 hard gold, with case alien Wang Chunsheng was signed " assure to assure mortgage loan contract " , the loan of the 7 people such as actual collection Niu Gongxia, deliver to loan actually Wang Chunsheng, still dealt with relevant building guaranty to register formalities. Be in afore-mentioned " affirmatory book " in, peak of tall hard gold also signs in agency person place. Visible, him peak of tall hard gold participated in whole loan process, and to Pei Cheng nimble acceptance assumes what make sure responsibility is to know perfectly well and approbate. Proving Pei Cheng to nimble and loan agreement assure with personal property or be belonged to without evidence " marriage law of People's Republic of China " below case of the 19th the 3rd regulation, basis " top people court about marriage law of applicable ＜ People's Republic of China ＞ the explanation of a certain number of problems (2) " the 24th about " 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 " regulation, the makes sure debt should belong to nimble of a surname Cheng and Qiao Yu peak husband and wife of nimble of a surname Cheng is collective debt, agree of peak of tall hard gold carries collective reimbursement responsibility. Whether do personal property and company worth exist as to peak of tall hard gold " company law of People's Republic of China " case of high confuse sth with sth else, do not affect this case substance to handle a result. Peak of reason tall hard gold advocates he does not assume reimbursement responsibility, cannot hold water. Cannot hold water..
3, husband and wife lifts debt not to consider as husband and wife joint liability of course external with individual name
Case 3: The Huang Fengsen that top people court makes, Lin Feng sends rehear of civilian leasehold dispute to examine supervise civil ruling book with adjudgement [(2016) top magic art civilian explain 1419] think: "Because 5 pieces of receipt for a loan are fastened,come, case experience debt produces Yu Linfeng to send during with Huang Fengsen spouse concern puts add, lin Feng sends fail quote proves this debt is not husband and wife joint liability, 2 adjudgement sentence Ling Linfeng to send definitely assume joint liability to case experience loan, do not have undeserved. Do not have undeserved..
