Debts secured by one spouse for the other spouse shall be joint debts

(Image source network invasion and deletion)

Summary of the trial

The provision of security by one spouse for the debts of the other party is essentially the knowledge, consent and decision of the spouse for the formation of the debt, which is the embodiment of the equal right of the husband and wife to dispose of the joint property and joint debts, indicating that the husband and wife have fully considered the occurrence and burden of the debt, and the creditor also has reason to believe that the two of them have a common intention for the formation and burden of the debt. Therefore, the debts guaranteed by one spouse for the other party conform to the basic principle of "joint debt and joint signature" and should be regarded as joint debts formed by the joint intention of the husband and wife.

Basic facts of the case

Zhang Moumou filed a lawsuit with the people's court, requesting Sun Moumou and Zhao Moumou to jointly repay the loan of 15,000 yuan and interest.

After trial, the court ascertained that the defendants Sun Moumou and Zhao Moumou were husband and wife, and on March 10, 2019, Sun Moumou borrowed 15,000 yuan from Zhang Moumou, set up an IOU, and agreed on the interest and liability for breach of contract during the loan period, and Zhao Moumou signed the "guarantor" on the IOU. On March 10, 2019, Zhang Moumou completed the delivery of the loan through bank transfer. After the loan expired, Sun and Zhao did not repay the loan when they sued.

On July 22, 2021, the Hedong District People's Court of Linyi City rendered the (2021) Lu 1312 Min Chu No. 3283 Civil Judgment: 1. Sun Moumou and Zhao Moumou shall repay the principal of Zhang's loan of 15,000 yuan and interest within 10 days from the effective date of the judgment (the interest is based on 15,000 yuan, and from March 10, 2019 to April 9, 2020, it is calculated at four times the one-year loan market prime rate issued by the National Interbank Funding Center in April 2020); 2. Sun XX and Zhao XX shall pay Zhang XX 1,500 yuan in liquidated damages within 10 days of the effective date of the judgment; 3. Reject Zhang's other litigation claims.

After the judgment was pronounced, the two parties did not file an appeal, and the judgment has taken legal effect.

Grounds for the Trial

The effective judgment of the court held that: Zhao Moumou signed at the "guarantor" of the IOU, which showed that Zhao Moumou knew the fact of Sun Moumou's loan and agreed to be bound by the debt, and Sun Moumou did not infringe on Zhao Moumou's right to know and consent, on the contrary, Zhao Moumou provided a guarantee for the loan, which can better show that the husband and wife have fully considered the occurrence and burden of the loan and enjoy the right to deal with it equally, and the creditor Zhang Moumou also has reason to believe that the two of them have a common intention to form and burden the debt. The debts of the husband and wife in the form of a common intention to jointly sign the debt, or the debts borne by one of the husband and wife in their own name for the daily needs of the family during the existence of the marital relationship constitute joint debts of the husband and wife, and the debts in this case are joint debts of the husband and wife, which shall be jointly repaid by Sun XX and Zhao XX.

Associate indexes

Article 585 of the Civil Code of the People's Republic of China: The parties may agree that when one party breaches the contract, it shall pay a certain amount of liquidated damages to the other party according to the circumstances of the breach, and may also agree on the method of calculating the amount of compensation for losses arising from the breach.

If the agreed liquidated damages are lower than the losses caused, the people's court or arbitration institution may increase them at the request of the parties; Where the agreed liquidated damages are excessively higher than the losses caused, the people's court or arbitration institution may appropriately reduce them at the request of the parties.

If the parties agree on liquidated damages for delayed performance, the breaching party shall also perform the debt after paying the liquidated damages.

Article 667:A loan contract is a contract in which the borrower borrows money from the lender and returns the loan at maturity and pays interest.

Article 674:The borrower shall pay interest within the agreed time limit. Where there is no agreement on the time limit for the payment of interest or the agreement is not clear, and it is still uncertain in accordance with the provisions of Article 510 of this Law, and the loan period is less than one year, it shall be paid together with the return of the loan; If the loan period is more than one year, it shall be paid at the end of each year, and if the remaining period is less than one year, it shall be paid together with the return of the loan.

Article 675:The borrower shall return the loan within the agreed time limit. Where there is no agreement on the term of the loan or the agreement is not clear, and it cannot be determined in accordance with the provisions of Article 510 of this Law, the borrower may return it at any time; The lender may demand the borrower to return it within a reasonable period of time.

Article 676: Where a borrower fails to repay the loan within the agreed time limit, it shall pay overdue interest in accordance with the agreement or the relevant provisions of the State.

Article 1064:Debts incurred by both husband and wife as jointly signed by both husband and wife or by one of the husband and wife as an expression of common intent such as retrospective recognition by one of the husband and wife, as well as debts incurred by one of the husband and wife in their own name for the daily needs of the family during the existence of the marital relationship, are joint debts of the husband and wife.

Debts incurred by one of the spouses in his or her own name during the existence of the marital relationship in excess of the daily needs of the family are not joint debts of the husband and wife; However, the creditor can prove that the debt was used for the husband and wife's common life, joint production and business, or based on the common intention of the husband and wife.

Article 25 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases (2020 Amendment)" Where the borrower and the borrower have not agreed on interest, and the lender claims to pay interest, the people's court will not support it.

Where the agreement on interest is unclear in a loan between natural persons, and the lender claims to pay interest, the people's court will not support it. Except for loans between natural persons, where the agreement between the borrower and the borrower on the loan interest is unclear, and the lender claims the interest, the people's court shall consider the content of the private lending contract and determine the interest based on factors such as the local or the parties' transaction methods, trading habits, and market prime interest rates.

Article 29 Where there is an agreement between the borrower and the borrower on the overdue interest rate, the agreement shall prevail, but it shall not exceed four times the one-year loan market prime interest rate at the time of the conclusion of the contract.

Where there is no agreement on the overdue interest rate or the agreement is unclear, the people's court may distinguish between different situations:

(1) Where neither the interest rate during the loan period nor the overdue interest rate has been agreed, and the lender claims that the borrower bears liability for default in overdue repayment from the date of overdue repayment, the people's court shall support it;

(2) Where the interest rate during the loan period has been agreed but the overdue interest rate has not been agreed, and the lender claims that the borrower shall pay the interest during the period of capital occupation in accordance with the interest rate during the loan period from the date of overdue repayment, the people's court shall support it.

Article 31 The borrower may repay the loan in advance, unless otherwise agreed by the parties.

Where the borrower repays the loan in advance and claims that the interest be calculated according to the actual term of the loan, the people's court shall support it.

<中华人民共和国民事诉讼法>Article 90 of the "Supreme People's Court's Interpretation on Application" A party shall provide evidence to prove the facts on which its own litigation claims are based or the facts on which the other party's litigation claims are based, except as otherwise provided by law.

Where a party fails to provide evidence or the evidence is insufficient to prove its factual assertion before a judgment is rendered, the party who bears the burden of proof shall bear the adverse consequences.

First instance: Judgment of Hedong District People's Court of Linyi City, Shandong Province (2021) Lu 1312 Min Chu No. 3283 (July 22, 2021)

Source: People's Court Case Database (2023-07-2-103-001), Shandong High Court