Adjudication Rules on Disputes over Joint Debts of Husband and Wife (63).

Source: The rule of the same judgment for similar cases

Rules for adjudication of disputes over joint debts between husband and wife

Revised May 2024

Table of Contents

I. Reference Cases in the People's Court's Case Database (4 cases)

II. Typical Cases of the Supreme People's Court (11 Cases)

III. Typical Cases of Local People's Courts at All Levels (48 Cases)

I. Reference Cases in the People's Court's Case Database (4 cases)

01. Reference case: Identification and repayment of debts during the debtor's lifetime - Zhang, Wang v. Song and other loan contract disputes

[Summary of the trial]:

If the borrower claims rights on the basis that the borrower is a joint debt of the husband and wife, the lender shall provide evidence to prove that the debt is used for the borrower's husband and wife's common life, joint production and operation, or based on the joint intention of the husband and wife. If the other spouse is aware of the loan and expresses his intention to repay the loan, even if he or she does not know the specific amount of the loan, this situation should be recognized as a joint debt of the husband and wife.

【Trial Reason】:

The effective judgment of the court held that the parties have the responsibility to provide evidence for their own claims. Private lending between natural persons must not only have an agreement to borrow, but also the actual delivery of the loan money before the fact of the loan can be established. Although Zhang and Wang claimed rights with an IOU of 310,000 yuan dated April 16, 2016 and an outstanding receipt of 280,000 yuan on May 16, 2016 issued by Hu before his death, they did not provide relevant proof of delivery. Combined with the time, amount, and literal meaning stated on the two notes, as well as Hu's bank account statements before his death, Wang transferred 100,000 yuan to Hu on March 11, 2016, and Hu transferred 32,100 yuan to Wang from April 16, 2016 to May 16, 2016. Although the loan was borrowed by Hu in his personal name, in the WeChat chat records between Wang and Song, Song knew about the money owed, although he did not know the amount, but said that he would find a way to repay the money, so it should be determined that it was a joint debt of the husband and wife, and after Hu's death, Song should be liable for the repayment of the joint debts of the husband and wife, and Hu, Li, Hu1, and Hu2 should no longer be liable for repayment. After May 16, 2016, Hu transferred 124616 yuan to Wang and Zhang, of which 52,066 yuan (7,438 yuan per transaction, a total of 7 transactions) was to repay Hu's bank loan, and the remaining 72,550 yuan (124616 yuan - 52,066 yuan) should be deducted from the loan of 280,000 yuan, so Song should bear the repayment responsibility of 207,450 yuan (280,000 yuan - 72,550 yuan). The plaintiff asserted that it had orally agreed with the borrower Hu to calculate the interest at a monthly interest rate of 1.5 cents, but it could not provide evidence to prove that the two parties had not agreed on the interest on the IOU, and it was deemed that the interest was not paid. The interest on overdue payment claimed by the plaintiff shall be calculated at an annual interest rate of 6% from the date of the plaintiff's claim, i.e., November 12, 2018, to the date of repayment in accordance with the second paragraph of Article 29 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases.

[Case document number] :(2022) Jin 08 Min Zai No. 7

02. Reference case: The debts guaranteed by one spouse for the other party should be the joint debts of the husband and wife - Zhang XX v. Sun XX and Zhao XX Private Loan Dispute Case

[Summary of the trial]:

The provision of guarantee by one spouse for the debts of the other party is essentially the knowledge, consent and decision of the guarantor party to 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.

[Reasons 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.

[Case Number] :(2021) Lu 1312 Min Chu No. 3283

03. Reference case: Case of a village committee applying to add Xie as the person subject to enforcement

[Summary of the trial]:

The addition of a person subject to enforcement in the enforcement procedure must follow the principle of legalism, that is, it is limited to the scope of addition clearly provided for by laws and judicial interpretations, and can neither be added beyond the statutory circumstances, nor can it be directly cited from the relevant substantive judgment provisions for addition. Where the person applying for enforcement applies to add the spouse of the person subject to enforcement as the person subject to enforcement, the people's court will not add it because it exceeds the statutory circumstances. When the creditor has conclusive evidence to prove that the debts of one of the husband and wife determined by the effective legal documents are joint debts of the husband and wife, the creditor may file a lawsuit for confirmation of the joint debts of the husband and wife, and the husband and wife who have not raised the debts cannot be directly ruled to bear civil liability through the procedure of adding a person subject to enforcement in the enforcement procedure.

【Trial Reason】:

The effective judgment of the court held that the addition of the person subject to enforcement in the enforcement procedure means that the person other than the person subject to enforcement specified in the effective legal document shall bear the substantive liability directly through the enforcement procedure, which will have a great impact on the substantive and procedural rights of the parties. Therefore, the addition of a person subject to enforcement in the enforcement procedure must follow the principle of legalism, that is, it is limited to the scope of addition expressly provided for by laws and judicial interpretations, and cannot be added beyond the statutory circumstances, nor can it be directly cited from the relevant substantive adjudication provisions for addition. In the "Provisions of the Supreme People's Court on Several Issues Concerning the Change and Addition of Parties in Civil Enforcement", it is only for those who are legal persons or other organizations that are subject to enforcement, and relevant persons not involved in the case may be added as the person subject to enforcement in the civil enforcement procedure, and there is no provision that the spouse or former spouse of a natural person may be added as the person subject to enforcement in the enforcement procedure, unless the natural person who is the person subject to enforcement dies or is declared dead, and the person applying for enforcement applies for the change or addition of the executor or heir of the citizen natural person, Where the legatee or other entity that obtains the estate as a result of the citizen's death or declaration of death is the person subject to enforcement, and bears responsibility within the scope of the estate, the people's court is to support it. Article 1064 of the Civil Code of the People's Republic of China stipulates that the debts owed by one of the husband and wife can only be recognized as joint debts of the husband and wife after the fact that the debts owed by the spouses are the debts of the common intention of the spouses or the debts incurred for the daily needs of the family. However, this article is a judgment rule based on which the people's court resolves the civil dispute of the parties and determines the civil liability, and does not belong to the authorized provisions of the enforcement power. The power of enforcement is of a public nature, and the general principle of exercising public power should be followed, that is, "it is prohibited unless authorized by law". Therefore, if one of the husband or wife cannot be added as the person subject to enforcement in accordance with the provisions in the enforcement procedure, the creditor shall be notified to file a separate lawsuit and the enforcement shall be consolidated after obtaining the basis for enforcement against the spouse of the person subject to enforcement. In this case, the repayment obligor determined by the effective (2022) Chuan 2021 Min Chu No. 3609 Civil Judgment rendered by this court is Tang, and it is not determined that Tang's wife, Xie, bears the responsibility for repayment. Therefore, the request of a village committee to add Xie as the person subject to enforcement in the case of (2022) Chuan 2021 Zhi No. 3277 has no legal basis and is not supported by the court. In accordance with Article 17 of the Provisions of the Supreme People's Court on the Handling of Enforcement Objections and Reconsideration Cases by the People's Courts, the objection request of a village committee to add Xie X as the person subject to enforcement in the case of (2022) Chuan 2021 Zhi No. 3277 was rejected.

[Case document number] :(2023) Chuan 2021 Zhiyi No. 19

04. Reference case: Determination of joint debts between husband and wife during the existence of marital relationship - a bank v. Zhang and Zhou, a financial loan contract dispute

[Summary of the trial]:

Debts incurred by one of the husband and wife 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, unless the creditor can prove that the debts were used for the husband and wife's common life, joint production and business, or based on the joint intention of the husband and wife.

【Trial Reason】:

The effective judgment of the court held that Article 3 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Debts between Husband and Wife stipulates that if a creditor claims rights for debts incurred by one of the husband and wife in his or her own name during the existence of the marital relationship in excess of the daily needs of the family on the ground that it is a joint debt of the husband and wife, the people's court shall not support it, unless the creditor can prove that the debt was used for the husband and wife's common life, joint production and operation, or based on the common intention of the husband and wife. The signature of Zhou XX in the "Personal Consumer Loan Credit Line and Disbursement Loan Contract" involved in the case was not signed by me, and Zhou XX also claimed that he did not know about the loan matters, so the above-mentioned loan contract should be regarded as signed by Zhang XX with a bank in his personal name. The amount of the loan involved in the loan contract far exceeded the daily needs of the family, and the bank asserted that the above-mentioned loan was a joint debt of Zhou XX and Zhang's wife, and should provide evidence to prove that the debt was used for the husband and wife's common life, joint production and operation, or based on the joint intention of the husband and wife. A bank did not provide evidence to prove it, so it should bear the legal responsibility for failing to provide evidence, and its application to order Zhou to bear joint repayment liability lacked factual and legal basis and was not supported.

The loan contract signed by a bank and Mr. Zhang is an expression of the true intention of both parties and does not violate the mandatory provisions of laws and administrative regulations, so it should be legal and valid, and all parties should perform relevant obligations in accordance with the agreement. After a bank issued a loan in accordance with the contract, Zhang XX failed to repay the principal and interest of the loan on time and in full, and his behavior constituted a breach of contract, and the litigation request of a bank requiring Zhang XX to repay the principal of the loan and repay the corresponding interest, compound interest, and penalty interest in accordance with the contract was in accordance with the provisions of the law and the contract, and was supported. With regard to the bank's litigation request that Zhang XX bear the lawyer's fees that the bank had actually paid, it was in accordance with the contract signed by the two parties and was supported.

Case No.: :(2020) Jing 0102 Min Chu No. 15701

II. Typical Cases of the Supreme People's Court (11 Cases)

05. Fuxin Bank Co., Ltd. Dalian Branch and Zhao had a financial loan contract dispute

[Summary of the trial]:

Although the contract does not record that the guarantor's spouse is also the guarantor, his or her spouse also signs at the "guarantor" of the contract, and acknowledges that the signature is a confirmation of the spouse's act of providing guarantee to the agreed guarantor. Therefore, even if the guarantor's spouse is not the guarantor of the loan contract, the debts incurred by the guarantor as a result of the guarantor's guarantee act should be recognized as joint debts of the husband and wife, that is, the guarantor and his or her spouse shall jointly and severally be liable for the debts owed by the creditor.

Case No.: :(2019) Supreme Law Min Shen No. 2216

06. If one of the husband and wife borrows an individual loan, and the creditor has no other evidence to support it, the debt involved in the case cannot be determined to be a joint debt of the husband and wife just because the spouse has made several repayments

[Summary of the trial]:

If one of the husband and wife borrows money from the lender in his or her own name as a borrower, and the lender (creditor) only believes that the loan is for the joint business of the husband and wife based on the borrower's spouse's several repayments, and because the repayment is not necessarily related to whether the joint debts of the husband and wife are constituted, and the lender (creditor) has no other evidence to support it, the people's court should not support the lender's claim that the loan debt involved in the case is a joint debt of the borrower and the husband and wife, and thus require the husband and wife to repay it jointly.

Case Number: :(2021) Supreme Law Min Shen No. 2196

07. If the loan contract is signed by one of the husband and wife, and the money is paid by one of the husband and wife, and the amount of money exceeds the daily needs of the family, and the creditor fails to submit sufficient evidence to prove that the other spouse participated in the performance of the loan contract and requires him to bear joint responsibility for repayment, the people's court will not support it - Chen XX and Li XX et al

[Summary of the trial]:

The Supreme People's Court held that Article 3 of the original Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Debts between Husband and Wife (repealed) stipulates that: "Where a creditor claims rights over 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 on the ground that they are joint debts of the husband and wife, the people's court shall not support them, unless the creditor can prove that the debts were used for the husband and wife's common life, joint production and operation, or based on the common intention of the husband and wife." "In this case, the "Investment and Wealth Management Agreement" was signed by Li Moumou, and the money was paid by Li Moumou, and the amount of money also exceeded the daily needs of the family, and Chen Moumou did not submit sufficient evidence to prove that Zhao Moumou participated in the performance of the "Investment and Wealth Management Agreement". Chen's claim that Zhao should bear joint repayment liability is not based on sufficient grounds.

Case Number: :(2021) Supreme Law Min Shen No. 3028

08. Key Points to Consider in Determining Whether the Debt Guaranteed by One of the Husband and Wife is a Joint Debt of the Husband and Wife -- Zhang Xiuping and Tian Yu, the defendant of the first instance and the appellant of the second instance, Hebei Xuyue Industrial Group Co., Ltd., and the defendants of the first instance, Zeng Haisheng, Xu Yuequan, Hao Wenjie, Hebei Lijia Real Estate Development Co., Ltd., and Hebei Xinyuan Shunfa Chemical Fertilizer Co., Ltd., a dispute over a loan contract

[Summary of the trial]:

I. In the Reply to the Fujian Provincial High People's Court on Whether the Debts Guaranteed by One of the Husband and Wife Can Be Recognized as Joint Debts of the Husband and Wife ([2015] Min Yi Ta Zi No. 9) issued by the First Civil Division of the Supreme People's Court to the Fujian Provincial High People's Court in the case of "Private Loan Dispute between the Retrial Applicants Song and Ye and the Respondent Ye and the Defendants Chen and Li in the First Instance", although it contains the expression that "the debts guaranteed by one of the husband and wife shall not be recognized as joint debts of the husband and wife in accordance with the provisions of Article 24 of Interpretation II of the Marriage Law". However, the reply is a reply to the question of the application of law in specific cases, and is not in the nature of judicial interpretation and is not universally binding.

II. Debts guaranteed by one of the spouses are generally not recognized as joint debts of the husband and wife, considering that one of the spouses often does not enjoy his or her benefits. However, not all secured debts are not joint debts of the husband and wife, and whether the secured debts are joint debts of the husband and wife should be considered whether the debts are closely related to the common life of the husband and wife.

Case Number: :(2017) Supreme Law Min Shen No. 44

09. If one of the husband and wife did not sign the loan contract involved in the case, and the creditor only claimed that the company held by the party was the shareholder of the company to which the equity transfer of the debt involved in the case belonged to the company, and it was a joint debt of the husband and wife, the people's court did not support it-Zhu Moumou and Henan Yiteng New Energy Technology Co., Ltd. Contract dispute case

[Reasons for the trial]:

The "Debt Repayment Contract" involved in the case confirmed that Zhu Moumou should pay a total of 37.4 million yuan of loan principal and interest to Wen Moumou. Yang and Zhu were husband and wife, and the debts involved in the case occurred during the existence of their marital relationship. For the issue of whether Yang Moumou should bear joint and several liability for debts incurred in the name of Zhu Moumou and beyond the daily needs of the family, Article 3 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Debts between Husband and Wife (now Article 1064 of the Civil Code) implemented on January 18, 2018 should be based on "debts incurred by one of the husband and wife in his or her own name during the existence of the marital relationship that exceed the daily needs of the family, Where a creditor claims rights on the ground that it is a joint debt of the husband and wife, the people's court shall not support it, except where the creditor can prove that the debt was used for the husband and wife's common life, joint production and operation, or based on the joint intention of the husband and wife". In this case, Yang did not sign the Debt Repayment Contract and its supplementary agreement, and Wen did not submit other evidence to prove that the debts involved in the case were based on the common intention of Yang and Zhu; The industrial and commercial registration information of Yiteng Company (the debt involved in the case was caused by the transfer of the equity of Yiteng Company by Zhu Moumou to Wen) submitted by Wen Moumou only shows that Suzhou Deji Enterprise Management Center (Limited Partnership) held by Yang Moumou is also a shareholder of Yiteng Company, but the shareholding relationship cannot show that the debts involved in the case were used for the joint business activities of Yang Moumou and Zhu Moumou. Under the circumstance that Wen XX failed to fulfill the full burden of proof, his claim that Yang XX was jointly and severally liable for Zhu's debts was not based on sufficient grounds and could not be established.

Case Number: :(2018) Supreme Law Min Zhong No. 202

10. During the existence of the husband and wife relationship, if one of the husband and wife and the company jointly invested by both parties as the borrower, and the "Loan Contract" signed with the lender stipulates that the loan shall be used for the use of the working capital of the company jointly invested by both parties, it shall be deemed that the loan is used for the joint production and operation of the husband and wife, and after the loan occurs, the other party of the husband and wife shall provide a guarantee for the loan, and it shall be determined that the party is aware of or recognize the fact of the loan, and the debt shall be recognized as a joint debt of the husband and wife - a private loan dispute between Li and Yunnan Tianhui Investment Co., Ltd

[Reasons for the trial]:

Article 1 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Debts between Husband and Wife (now Article 1064 of the Civil Code) stipulates that "debts incurred by both husband and wife jointly signed by both husband and wife or recognized by one of the husband and wife after the fact, shall be recognized as joint debts of husband and wife", and Article 3 stipulates that "where a debt incurred by one of the husband and wife in his or her own name during the existence of the marital relationship exceeds the daily needs of the family, and the creditor claims rights on the ground that it is a joint debt of the husband and wife, The people's court will not support it, except where the creditor can prove that the debt was used for the husband and wife's common life, joint production and operation, or based on the joint intention of the husband and wife." The Loan Contract stipulates that the loan under the contract shall only be used by the borrower Li and Yunnan Tianhui Investment Co., Ltd. as working capital. The loan involved in the case occurred during the existence of the husband and wife relationship between Li and Deng, and Yunnan Tianhui Investment Co., Ltd. was 95% owned by Li and 5% held by Deng, and the loan should be determined to be used for the joint production and operation of Li and Deng Mouying. After the loan occurred, Deng Mouying used his shares in Yunnan Tianhui Investment Co., Ltd. to handle the equity pledge for the loan involved in the case, and it should be determined that Deng Mouying knew the fact of the loan or recognized it afterwards. Therefore, the loan involved in the case is a joint debt of Deng Mouying and Li's husband and wife, and Deng Mouying should bear the joint responsibility for repayment.

Although 20 million yuan of the loans involved in the case were remitted to Li's account and 40 million yuan to the account of Yunnan Tianhui Investment Co., Ltd., Li and Yunnan Tianhui Investment Co., Ltd. signed the "Loan Contract" and issued the "Repayment Confirmation" as co-borrowers. Therefore, Li, as one of the co-borrowers, should bear the responsibility for repaying the entire loan of 60 million yuan. Deng Mouying's record on the registration application for equity pledge of the secured claim is 46,025,000 yuan, and it cannot be proved that the only guarantee is the 40 million yuan of debt remitted to Yunnan Tianhui Investment Co., Ltd. Therefore, Deng Mouying should bear the joint responsibility for the repayment of the principal and interest of the arrears corresponding to the 60 million yuan creditor's right.

Case Number: :(2020) Supreme Law Min Zai No. 84

11. Although one of the husband and wife borrowed debts in his or her own name in excess of the daily expenses, but the act was an investment and business behavior to earn interest margins, and the interest obtained was also used for the husband and wife to live together, it should be recognized as a joint debt of the husband and wife -- Cui Yuhua, Yang Xingyi, and Ma Yaozhong, a private loan dispute case

[Summary of the trial]:

One of the husband and wife borrowed a debt in his or her own name that exceeded the cost of daily expenses, and the creditor had proved that the loan involved in the case was an investment and business operation of one of the husband and wife to earn interest rate differences, and the interest was used for the husband and wife to live together, so the debt was a joint debt of the husband and wife and should be repaid jointly by the husband and wife.

Case No.: :(2018) Supreme Law Min Shen No. 634

[Case source]: "Commercial Trial Guidance" 2019 Volume 2 (Total Volume 49)

12. Where one of the husband and wife borrows money in his or her own name, but the funds flow to the other spouse's bank account, it may be deemed that he knowingly participated in the loan and should be treated as a joint debt of the husband and wife

[Summary of the trial]:

Although the defendant borrowed money from the plaintiff in his own name, from the perspective of capital flow, after the plaintiff remitted the money to the defendant's account, the defendant immediately remitted the money to his spouse, so it can be seen that the defendant's spouse should have been aware of and actually participated in the loan, so the loan should be deemed to be a joint debt of the husband and wife.

Case No.: :(2017) Supreme Law Min Shen No. 3507

13. If the creditor clearly knows that the loan is not used for the common life of the husband and wife, the loan should be determined to be the personal debt of one of the husband and wife-Fujian Chunqiu Culture Development Co., Ltd. v. Lin He and Chen Xiaoye Private Loan Dispute Case

[Summary of the trial]:

The creditor clearly knew that the loan was not used for the borrower's husband and wife's common life, joint production and operation, and was not based on the common intention of the husband and wife, and its litigation claim that the loan constituted a joint debt of the husband and wife had no corresponding factual and legal basis, and the court did not support it.

Case Number: :(2018) Supreme Law Min Zai No. 20

14. The fact that one of the spouses benefits from the debts formed by the loan of one of the husband and wife does not automatically give rise to the legal consequences of the joint debts of the husband and wife under the Marriage Law -- a case of financial loan contract dispute between the applicant Lanzhou Bank Co., Ltd. and the respondent Lin Yijun, Gansu Baihe E-commerce Co., Ltd., Shanghai Sanyuan Internet of Things Technology Co., Ltd., Liao Weiguo, Laipin Network Technology (Beijing) Co., Ltd., Wuyishan Zhoupantianxia Tea Industry Co., Ltd., and Lanzhou Huishang E-commerce Co., Ltd

[Summary of the trial]:

According to the law, if one of the husband and wife incurs a debt in his or her own name during the existence of the marital relationship that exceeds the daily needs of the family, and the creditor claims rights on the ground that it is a joint debt of the husband and wife, the people's court will not support it, unless the creditor can prove that the debt was used for the husband and wife's common life, joint production and operation, or based on the joint intention of the husband and wife. The evidence submitted by the creditor that the debtor (one of the husband and wife) is the legal representative of the company is not sufficient to prove that the debtor is engaged in the business in his personal name and in the capacity of the spouse of the other spouse with the other party, so the creditor's claim that the debt involved in the case is a husband and wife debt cannot be established due to lack of factual basis. The creditor also asserted that the debtor's spouse should be held liable for the de facto benefit of the transaction in question, because it is contrary to the basic legal principle of the Civil Company Law that the property and liabilities of the shareholders and the company are independent, and the fact that the debtor's spouse benefited from the fact does not automatically give rise to the legal consequences of the joint debts of the husband and wife under the Marriage Law.

Case No.: :(2021) Supreme Law Min Shen No. 1540

15. During the existence of the marital relationship, one of the husband and wife bears a large amount of debts in his or her own name, with a large number of debts and a long time span, and both parties have purchased huge assets and jointly operated during the existence of the marital relationship. At the same time, if one of the spouses frequently transfers money to the other party within a period of time before the divorce, and no reasonable explanation can be given as to the reason for the transfer and the nature of the money, the debts involved in the case shall be deemed to be joint debts of the husband and wife, and the husband and wife shall bear the joint responsibility for repayment.

[Summary of the trial]:

A incurred a large amount of debts in his personal name during the existence of the marriage, the number of debts was large, the time span was long, A and B purchased a huge amount of assets during the marriage, and B admitted that he had jointly operated a microfinance company with A before. According to the transaction details of People's Bank of China's personal current account involved in the effective (2019) Yun 05 Min Zhong No. 873 judgment, it can be seen that A transferred more than 5 million yuan to B in multiple tranches from February 21, 2017 to before the divorce (A and B divorced on September 19, 2018). Pursuant to Article 3 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Debts between Husband and Wife, the original trial court's determination that the debts involved in the case were joint debts of husband and wife A and B and that A and B were jointly liable for repayment was not lacking in basis, and the application of law was not improper.

Case No.: :(2022) Supreme Law Min Shen No. 425

III. Typical Cases of Local People's Courts at All Levels (48)

16. Determination of Liability in the Case of One Husband and Wife Providing Joint and Several Guarantees to the Outside World and the Other Party Only Signing at the Guarantor's Spouse of the Guarantee Contract -- A Bank v. Liu, Wu, and Zang, a Financial Loan Contract Dispute

[Summary of the trial]:

In a dispute over a financial loan contract, if the guarantor's spouse signs the guarantee contract, the content of the contract should be reviewed and determined whether the guarantor's spouse should be jointly and severally liable for the repayment of the loan. If one of the guarantor's spouses only signs and stamps at the end of the contract as the guarantor's spouse, and there is no evidence to prove that the guarantor's spouse's signature is an expression of intent to voluntarily provide joint and several guarantees, he or she shall not be jointly and severally liable for the repayment of the loan.

[Case Interpretation]:

The main issue involved in this case is whether the spouse of the guarantor should be jointly and severally liable for the repayment of the loan if one of the spouses of the husband and wife enters into a guarantee contract as a joint and several guarantor for the loan, and the spouse only signs and stamps the "spouse of the guarantor" in the guarantee contract.

There are two views on such situations in judicial practice:

The first view is that the debt guaranteed by the guarantor is a joint debt of the husband and wife, and the spouses should be jointly liable for repayment.

Article 1064 of the Civil Code of the People's Republic of China stipulates: "Debts incurred by both husband and wife in the joint signature of the husband and wife or by one of the husband and wife in the subsequent recognition of the common intention, as well as debts incurred by one of the husband and wife in his or her own name for the daily needs of the family during the marriage 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. "During the existence of the marital relationship, one of the husband and wife signs the guarantee contract, and the spouse signs and seals the "guarantor's spouse", which is a credit enhancement measure provided to a lender such as a financial institution, and the signature and seal of the guarantor's spouse is an act of the spouse's knowledge and confirmation of the guarantor's act of providing a guarantee, and the guarantor and his or her spouse have a common expression of intent, which meets the principle of "joint debt and joint signature" in the criteria for determining the joint debts of the husband and wife, and the secured debt shall be determined to be a joint debt of the husband and wife, and the spouse shall bear the joint responsibility for repayment.

The second view is that one of the spouses should not be liable for liquidation if he or she only signs with the "guarantor's spouse".

The spouse did not sign the guarantee contract, but signed it at the "guarantor's spouse", and did not have a clear expression of intent to bear the guarantee liability for the debt, so it did not constitute the guarantor of the debt involved in the case. Article 24 of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the <中华人民共和国婚姻法>Marriage [expired on January 1, 2021] stipulates that: "Where a creditor claims rights in respect of a debt incurred by one of the spouses in his or her own name during the marriage, it shall be treated as a joint debt of the husband and wife. However, one of the spouses can prove that the creditor and the debtor have expressly agreed that it is a personal debt, or can prove that it falls under the circumstances provided for in paragraph 3 of Article 19 of the Marriage Law." In 2015, the First Civil Division of the Supreme People's Court clearly stated in the Reply on Whether the Debts Guaranteed by One of the Husband and Wife Can Be Recognized as Joint Debts of the Husband and Wife that the debts guaranteed by one of the spouses should not be recognized as joint debts of the husband and wife in accordance with Article 24 of the Interpretation (II) of the Marriage Law. It can be seen that the debts guaranteed by one of the husband and wife are not joint debts of the husband and wife, and the guaranteed debts formed have nothing to do with the spouse, and the spouses do not need to bear the joint responsibility for repayment.

On the issue of whether the spouse bears the liability for repayment when he or she signs his or her name in the "Guarantor's Spouse" column of the guarantee contract, it is necessary to determine whether the spouse has the status of a guarantor and whether the debt of the guarantee is a joint debt of the husband and wife.

1. Determination of whether the spouse has the status of a guarantor.

The guarantor's spouse only signs and stamps the "guarantor's spouse" in the sponsorship contract, and it cannot be presumed that the guarantor's spouse has the status of a guarantor. The signature and seal of the guarantor's spouse only indicates that he knows, understands or even confirms the guarantor's guarantee, and cannot reflect his subjective intention to provide a guarantee for the debts involved in the case. In financial loan contract disputes, financial institutions have a strong sense of risk prevention and are in an advantageous position in the transaction, and can and are fully qualified to require the spouse to make an expression of intent to provide a guarantee for the main debt or to add the spouse as a guarantor afterwards when signing the guarantee contract, and only require the spouse to sign at the spouse of the guarantee contract, which is often an intentional choice based on factors such as personal credit reporting, transaction efficiency, and management costs. When the facts of the case are unclear, when determining whether one spouse bears guarantee liability, the principles of prudence and protection of the interests of civil entities in good faith and without fault should be upheld, and the role of adjudication and guidance should be brought into play to regulate the transaction conduct of civil entities and strengthen risk prevention. Therefore, to determine that the guarantor's spouse has the status of a guarantor, the guarantor's spouse's clear expression of intent to provide a guarantee for the debts involved in the case must be used as the criterion. If the guarantor's spouse has a clear intention to provide a guarantor, it shall be deemed that the guarantor's spouse also has the status of a guarantor; On the other hand, if the spouse of the guarantor only signs at the spouse of the guarantee contract, it only means that he or she is aware of the existence of the guarantee act or the content of the guarantee contract, and based on the relativity of the contract, it cannot be presumed that the spouse has the status of the guarantor, and the spouse does not need to be liable for the repayment of the debts guaranteed by the guarantor. Specifically, in this case, Zang only signed and stamped with the guarantor's spouse and there was no other evidence to prove that Zang had the intention to bear joint and several guarantee liability, so he did not have the status of a guarantor and should not bear joint and several guarantee liability.

2. Analysis of whether the debts formed by the external guarantee of one of the husband and wife constitute joint debts of the husband and wife.

The basic criterion for judging whether the guaranteed debt is a joint debt of the husband and wife should be based on whether the husband and wife agree and whether the husband and wife benefit together. First of all, to determine that there is an agreement between the guarantor and his or her spouse on the guarantee debt, the standard should be that the spouse has made a clear expression of intent on the guarantor's guarantee act, that is, the guarantor's spouse is required to make an expression of intent to join the guarantee debt or guarantee the external security with the joint property of the husband and wife. When judging whether it is a joint debt of the husband and wife, the principle of individual debt borrowing should be taken as the exception, and the scope of routine family agency cannot be expanded if the spouse does not clearly indicate that he or she is liable for the joint property of the husband and wife, and the guarantor's spouse shall be determined to be liable for the guaranteed debt according to the joint debt of the husband and wife. In this case, if Zang only signed at the spouse of the guarantor of the guarantee contract and did not make a clear expression of intent on the guarantor's guarantee, the judgment should not be broadened to mean that the debt of the guarantee involved in the case is a joint debt of the husband and wife. Second, determine whether the guarantor and his or her spouse have jointly benefited from one of the sponsors, so as to determine whether it constitutes a joint debt of the husband and wife.

In judicial practice, this point is quite controversial. There is a view that although the debt of guarantee is unilateral and gratuitous, and it cannot meet the "daily needs of the family" and cannot be used for "the husband and wife to live together and jointly produce and operate", this does not mean that the husband and wife have not benefited from the guarantee of one of the spouses. If the guarantor and his or her spouse benefit from the act of guaranteeing and fall into the category of "daily needs of the family", "living together" or "joint production and operation", the provisions of Articles 1060 and 1064 of the Civil Code may be applied to recognize the debt guaranteed by one of the spouses as a joint debt of the husband and wife. For example, if the debtor pays a certain service fee to the guarantor in order to facilitate the conclusion of the guarantee contract, and the guarantor uses the money for the common life of the husband and wife, the economic interest is the joint benefit of the guarantor and his or her spouse, and the debt of the guarantee shall be recognized as the joint debt of the husband and wife; However, in the case of a reimbursable guarantee debt, if the guarantor's spouse does not know or agree to the guarantee, and the benefits obtained from the guarantee debt are not used for the joint life of the husband and wife, it shall not be presumed to be a joint debt.

Therefore, in determining whether the debts guaranteed by one of the husband and wife are joint debts of the husband and wife, the principle of judging each case should be adhered to, and the determination should be made by comprehensively considering the true meaning of the spouse's signature at the "guarantor's spouse" in the guarantee contract, whether the debts involved in the case were incurred during the existence of the marital relationship between the husband and wife, and whether the creditor can prove that the debts involved in the case were used for the husband and wife's common life or joint production and operation.

[Case source]: Typical case 148 of the application of the Civil Code of Shandong Court

17. The debtor shall bear the liability for repayment with all its property (including the joint property and personal property of the husband and wife), and the non-debtor shall bear the liability for repayment only to the extent of the joint property of the husband and wife, and its personal property before marriage and personal property acquired after divorce shall not be regarded as liable property.

[Summary of the trial]:

The court held that Lu Guohua's personal property before marriage and the property acquired after his divorce from Liu Minggui belonged to Lu Guohua's personal property and had nothing to do with the husband and wife's common life, so Lu Guohua's repayment of the joint debts of the husband and wife involved in the case should only be limited to his joint property with Liu Minggui, and his personal property should not be used as the property of responsibility for repaying the joint debts of the husband and wife involved in the case. However, as the borrower, Liu Minggui's act of borrowing shows that he has an intention to treat all of his personal property as liability property, including the part of the joint property of the husband and wife, so Liu Minggui should still be liable for the repayment of the debts involved in the case with all the personal property and the part of the joint property of the husband and wife.

Case Number: :(2014) Su Min Zai Ti Zi No. 0057

18. Does the borrowing of one party during the cooling-off period of divorce constitute a joint debt of the husband and wife?

【Judgment Result】:

After trial, the court held that a real and effective loan relationship was formed between Ren and Man. The plaintiff Ren X lent 270,000 yuan to the defendant Man XX, the facts are clear, the evidence is sufficient, the defendant Man XX failed to repay the loan within the agreed time limit, and the principal and interest of the plaintiff's loan should be repaid. On the issue of whether the present case constitutes a joint debt of the husband and wife. Defendants Man XX and Wang XX had applied for divorce registration before the occurrence of the loan, and after the fact of the loan occurred, there was no large amount of money exchange between the two, and it could not be proved that the loan involved in the case was used for the husband and wife to live together, and the plaintiff Ren XX did not submit evidence to prove that Wang XX was aware of the fact of the loan involved in the case, and Wang XX did not express his intention to repay it jointly, so the court found that the debt involved in the case did not constitute a joint debt of the husband and wife. In the end, the court ruled that the defendant Man XX should repay the plaintiff Ren's loan of 270,000 yuan and interest within 10 days from the effective date of the judgment, and rejected the plaintiff Ren's other litigation claims.

[Judge's Statement]:

The relevant provisions of the Civil Code of the People's Republic of China establish the basic principle of "joint debt and joint signature" in terms of content, and make it clear that the debts incurred for the daily needs of the family are the joint debts of the husband and wife. For the determination of joint debts of husband and wife, first, the debts borne based on the joint intention of the husband and wife can be jointly signed in advance or recognized after the fact; The second is the debt incurred for the daily needs of the family. In this case, the defendant Man and Wang were already in the cooling-off period of divorce at the time of the loan, and there was no large amount of money between the two parties, and the plaintiff Ren had no evidence to prove that the debts involved in the case were used for the common life of the husband and wife, so it could not be determined that the debts involved in the case were joint debts of the husband and wife. In real life, creditors should exercise prudent care when establishing creditor-debtor relationships, otherwise legal risks may easily arise.

19. Attention should be paid to verifying whether the debt guaranteed by a large amount of financial loan between husband and wife is the true expression of the intention of one of the guarantor's spouse -- a financial loan contract dispute supervision case between Guangzhou First Branch of Industrial and Commercial Bank of China and a refrigeration equipment installation engineering Co., Ltd. in Guangzhou, Liang Mouting, etc

[Summary of the trial]:

In the field of financial loan business, the guarantor's guarantee debt is often huge, and obviously does not belong to the scope of daily family life in the usual sense, and the guarantor's spouse guarantees a large amount of financial loans, and if they sign together, it is a joint debt and must bear the guarantee liability. In the course of reviewing the case, the procuratorial organs shall verify the authenticity of the signatures by means of collecting evidence, appraisals, and questioning the parties, so as to determine whether the debts secured by large financial loans are the true expression of the intention of the guarantor's spouse, and truly safeguard the lawful rights and interests of the guarantor's spouse, especially housewives who do not participate in their spouse's production and business activities.

[Typical significance]:

In judicial practice, the criteria for judging joint debts of husband and wife and the rules for the application of law have been revised and improved many times, and Article 1064 of the Civil Code formally establishes the principle of "joint debt and joint signature" of joint debts of husband and wife. Especially in the field of financial loan business, the amount of debt guaranteed by the guarantor is often huge, and obviously does not belong to the scope of daily family life in the usual sense, and the guarantor's spouse needs to sign jointly to guarantee a large amount of financial loans, or the creditor can prove that the debt is used for the husband and wife to live together, joint production and operation, in order to be recognized as a joint debt and jointly liable. In the course of examining a case, the procuratorial organs should make good use of their power of investigation and verification, and may, on the basis of the parties' applications, adopt methods such as collecting evidence, appraisals, and questioning the parties concerned to verify the authenticity of the signatures, so as to determine whether the debts secured by large financial loans are the true expression of the intention of the guarantor's spouse, and truly safeguard the lawful rights and interests of the guarantor's spouse, especially housewives who do not participate in their spouse's production and business activities. The handling of this case fully demonstrates the important role of the procuratorial organs in the field of civil supervision, and through the use of investigation and verification powers, they have fully performed their legal supervision functions and effectively safeguarded the legitimate rights and interests of women.

[Case source]: The Guangdong Provincial People's Procuratorate released typical cases involving joint debts of husband and wife

20. How to determine that the loan is a joint debt of the husband and wife? ——Lu Moulu and Xing Moutao and Fang Moumou private lending dispute case

[Summary of the trial]:

In a private lending dispute case between natural persons, in a debt dispute case where the lender sues one of the husband and wife as the defendant, whether the debts involved in the case are joint debts of the husband and wife shall be determined in accordance with the provisions of Article 24 of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China. If the borrower's spouse can prove that the borrowed debt was not used for the purpose of living together as husband and wife, he or she may not be liable for repayment.

[Rule Analysis]:

During the existence of the marital relationship, whether the external debts of one of the husband and wife belong to the joint debts of the husband and wife or the personal debts of one of the husband and wife not only involve the interests of the husband and wife, but also directly affect the interests of creditors. According to the provisions of the Marriage Law and judicial interpretations, there are two criteria for determining the joint debts of husband and wife: first, whether the debts occurred during the existence of the husband and wife relationship; Second, whether the debt is incurred by the husband and wife living together. Therefore, when determining whether the debt is borne by the husband and wife living together, it should be based on the comprehensive judgment of whether the purpose of borrowing the debt is for the purpose of living together with the husband and wife, whether the benefits after the debt are jointly enjoyed by the husband and wife, and the purpose of the borrower's borrowing.

Case No.: :(2013) Gao Min Chu Zi No. 1629 (2014) Ning Min Zhong Zi No. 5338

Case source: The First Division of the Civil Trial of the Supreme People's Court, Case Guidance for the Trial of Private Lending Disputes, People's Court Press, August 2015, 1st edition.

21. The husband and wife shall be jointly and severally liable for the joint debts of the husband and wife, and if the joint property of the husband and wife is insufficient to repay the joint debts, the husband and wife shall use their respective personal property to pay off the joint debts

[Summary of the trial]:

The court held that the first-instance judgment exceeded the scope of Chen Baihua's claim for joint and several liability for repayment as claimed by Lin Changqing. According to the law, joint and several liability means that two or more debtors are separately liable for the full payment of the joint debt to the creditor. When the law directly stipulates that the parties are jointly and severally liable, it is legally prescribed joint and several liability. Article 1089 of the Civil Code of the People's Republic of China stipulates that if the joint property is insufficient to be repaid, or the property is owned by each other, the two parties shall settle it by agreement; If the agreement is not reached, the people's court shall make a judgment. Therefore, when the joint property of the husband and wife is insufficient to pay off the joint debts, the spouses should pay off the joint debts with their respective personal property, and it is not a provision for exemption from liability for the insufficient part of the joint property. This is sufficient to presume that the husband and wife should be jointly and severally liable for the settlement of joint debts.

Case Number: :(2021) Min 02 Min Zhong No. 7411

22. If one of the husband and wife mortgages the house jointly owned by the husband and wife without authorization, and the mortgage is not recognized by the other party, it cannot be proved that the mortgage is a true expression of intent and is not effective - Xiao Min v. Xiao Lu, Xiao Wang, and Zhang, a dispute over a guarantee contract

[Summary of the trial]:

Since one of the husband and wife mortgaged the house jointly owned by the husband and wife without authorization, and pretended to be the other party to recognize the mortgage guarantee contract, the available evidence could not prove that the other party had the true intention to establish a mortgage on the house at issue, so the people's court ruled that the relevant guarantee clause was not effective against the other party in accordance with law.

23. A large amount of debt borrowed by one of the husband and wife that is not used for living together is a personal debt-Chen Kejun v. Qi Qi and Cui Xiaowei, a private loan dispute

[Summary of the trial]:

Whether the debts incurred by one of the spouses should be recognized as joint debts of the husband and wife should be based on whether the debts are used for the joint life of the husband and wife. In the case of large debts incurred by one of the spouses that are not used for common living, they shall be recognized as the personal debts of the borrower, not the joint debts of the husband and wife.

Case No.: :(2017) Jing 0111 Min Chu No. 12207

24. The debts of the husband and wife during the period of living together after the divorce should be borne by both parties - Li Jia v. Li Mouquan et al., a retrial of a loan contract dispute

[Summary of the trial]:

The existence of trading habits between the parties shall be proved by the parties upon presentation of evidence, and the people's courts shall not apply them on their own initiative. Only because the previous transaction pattern is similar to the current transaction mode, the existence of corresponding trading habits shall not be determined. If the life and economic exchanges between the husband and wife are still relatively close after the divorce, it is not appropriate for one party to bear the debts only by that party, nor should it be determined that the debts are jointly and severally borne by both parties, but should be recognized as joint debts and borne by both parties.

Case No.: :(2016) Jin Min Shen No. 526

25. In a private lending dispute, if the husband or wife claims the joint debts of the husband and wife by means of an IOU unilaterally issued to the parents, it should first be ascertained whether there is a real loan agreement between the parents who are the nominal creditors and the children who are the nominal debtors -- Chen XX v. Wu XX and Li XX Private Lending Dispute Case

[Summary of the trial]:

In a private lending dispute, if the husband or wife claims joint debts by means of an IOU issued by the husband or wife to the parents, in principle, it is necessary to first ascertain whether there is a genuine loan agreement between the parents who are the nominal creditors and the children who are the nominal debtors. This shall be determined based on the lender's income, economic status and lending ability, whether the children and their spouses have a reasonable need for loans, whether there is a conflict of interest involving the division of property such as separation and divorce, and whether the IOU has been backdated.

Case Number: :(2018) Hu 02 Min Zhong No. 11683

26. If the monetary benefits obtained from the guarantee debts borne by the guarantor are used for the common life, production and operation of the husband and wife, they shall be recognized as joint debts of the husband and wife -- Wang XX v. Wang XX and Wu XX et al., a guarantee contract dispute case

[Summary of the trial]:

I. The guarantor's spouse knows that the guarantor bears the guarantee debt but does not prevent it, which does not constitute the guarantor's spouse's consent to be liable for the guarantee debt.

II. If the monetary benefits obtained by the guarantor are used for the common life, production and operation of the husband and wife, it shall be recognized as the joint debts of the husband and wife.

Case Number: :(2018) Hu 02 Min Zhong No. 11457

27. IOUs formed by "break-up fees" are not protected by law

[Summary of the trial]:

If the lender only provides an IOU, it can only prove that the parties have reached an agreement to borrow the loan, and if the lender cannot further prove that the loan was actually delivered, the loan contract has not taken effect. The plaintiff presented an IOU issued by the defendant, which could only prove that the plaintiff and the defendant had reached an agreement to borrow money, but it did not submit evidence to this court to prove that the loan was actually delivered. The plaintiff claimed that the formation of this IOU was formed after years of cash settlement between the two parties, but it could not clearly state the delivery details such as the delivery time and place of delivery, and the defendant denied the formation of a private lending relationship between the two parties and did not recognize the actual delivery of the loan. In this case, the plaintiff claimed to pay a large amount of money in cash, and there was only an IOU as evidence in the whole case, and there was no other evidence to support it, so this court found that there was no real loan relationship between the plaintiff and the defendant. The historical list of debit card accounts submitted by the plaintiff can only prove that the defendant remitted 100,000 yuan to the plaintiff's account on April 21, 2015, and also fails to prove the actual delivery of the loan of 300,000 yuan. Therefore, the plaintiff's claim for the defendant to repay the loan and pay interest does not comply with the provisions of the law and is not supported by this court.

Case Number: :(2016) Jing 0102 Min Chu No. 28028

28. If the borrower's spouse raises objections to the authenticity of the loan, it shall be comprehensively examined and judged whether the loan actually occurred - Li Shaohua v. Cai Yi et al., a loan contract dispute appeal case

[Summary of the trial]:

Whether the money is actually lent and whether the loan actually occurs is the primary and most basic fact of private lending cases. In handling private lending cases involving the debtor and his or her spouse involving a divorce background, when the lender and the borrower do not have any dispute over the occurrence of the loan, and the borrower's spouse raises objections to the authenticity of the loan, it should be combined with the statements and evidence of the parties to comprehensively verify and judge whether the loan really occurred, accurately grasp the standard of proof between this evidence and counter-evidence, and prevent the parties from covering up illegal purposes and false litigation in the form of loans.

Case No.: :(2015) Yue Gao Fa Min Si Zhong Zi No. 163

29. The debts of one of the husband and wife guaranteed by external guarantees should be judged by comprehensively considering whether the debts of the guarantee are closely related to the joint production and life of the husband and wife -- Yang v. Zhang and Wang, a private loan dispute

[Summary of the trial]:

According to Article 1064 of the Civil Code, whether the secured debt is closely related to the joint production and life of the husband and wife shall be comprehensively considered to determine whether the secured debt is a joint debt of the husband and wife.

30. How to determine whether the husband dies and leaves a million in arrears, whether it is a joint debt of the husband and wife?

[Summary of the trial]:

There are two points of dispute in this case: first, whether the debts involved in the case are joint debts of the husband and wife; The second is whether Tian Xiao and Ma should be held liable for the debts involved in the case.

After trial, the court held that the parties had the obligation to provide the court with corresponding evidence for their claims. Jin claimed that Tian had borrowed 1 million yuan from him before his death, and submitted the loan contract signed with Tian and the corresponding transfer voucher as evidence. Xu argued that he was unaware and that it was a false debt, but did not provide contrary evidence to overturn it, so the court found that there was a private lending relationship between Jin and Tian in accordance with the law, and that the legal lending relationship should be protected by law. Based on the available evidence, it can be determined that Tian still owes Jin the principal of the loan of 1 million yuan and the interest has not been repaid.

With regard to the first issue in dispute, according to Article 1064 of the Civil Code, if the creditor can prove that the debts incurred by one of the husband and wife in his or her own name during the existence of the marital relationship exceed the daily needs of the family, the debts may be deemed to be joint debts of the husband and wife if they can prove that the debts are used for the husband and wife's common life, joint production and operation, or based on the joint intention of the husband and wife. In this case, the loan involved in the case occurred during the existence of the husband and wife relationship between Tian and Xu, and although the two parties applied to the civil affairs department for divorce registration on January 11, 2021, they did not formally go through the divorce registration formalities after that. Moreover, during the existence of the relationship between the husband and wife, the two parties jointly operated a construction-related company, Xu also recognized the dry project, and recognized that the company's account Tian and both of them could operate it, and Xu took over the relevant project after Tian's death, combined with the loan contract stated that it was required for the project and the audio and video recordings and videos submitted by Jin to communicate with Xu, it should be determined that the loan involved in the case was used for the joint production and operation of Tian and Xu, and was a joint debt of the husband and wife. According to Article 36 of the Interpretation (1) of the Supreme People's Court on the Application of the Marriage and Family Section of the Civil Code of the People's Republic of China, Xu should be liable for the repayment of the principal and interest of the loan.

With regard to the second issue in dispute, according to Article 1161 of the Civil Code, the heir shall pay off the debts of the decedent to the extent of the actual value of the inheritance, and if the heir renounces the inheritance, he shall not be liable for repayment. The available evidence in this case proves that Tian left two properties and a company. After Tian's death, Tian Xiao and Ma were their first-order heirs, and now they have not expressly expressed their renunciation of the inheritance of Tian's estate, so they should bear the responsibility for repaying the debts involved in the case within the scope of inheriting Tian's estate in accordance with the law.

In the end, the court ruled that Xu should repay the principal of the loan of 1 million yuan and the corresponding interest in accordance with the law, and Tian Xiaomou and Ma should repay the principal of the loan of 1 million yuan and the corresponding interest within the scope of inheriting the estate of the decedent Tian. After the judgment was rendered, all parties accepted the judgment and dismissed the lawsuit, and the judgment has now entered into force.

[Rule Analysis]:

In the existing legal system and context of the mainland, "joint debts of husband and wife" should refer to the husband and wife, as joint debtors, who are jointly and severally liable for such debts with all their assets. Therefore, it is very important to determine the joint debts of husband and wife. Article 1064 of the Civil Code clarifies the criteria for determining the joint debts of husband and wife, which are mainly divided into three levels:

The first is the debt incurred based on the joint intention of the husband and wife. It may take the form of a joint signature in advance or a retrospective endorsement by one of the parties after the fact. The method of post-event recognition is not limited to written form, and can be judged through the content recorded in telephone recordings, text messages, WeChat, emails, etc.

The second is the debt incurred for the daily needs of the family. This kind of debt is mainly the debt borne by the scope of daily family agency, which is generated in the process of living together between husband and wife, and generally includes normal food and clothing, child support and education expenses, alimony for the elderly, medical expenses of family members, etc., which is the most typical joint debt of husband and wife.

The third is a debt that exceeds the daily needs of the family, but the creditor has evidence to prove that the debt is used for the husband and wife's common life, joint production and operation, or based on the joint intention of the husband and wife. During the existence of the marital relationship, in addition to the daily family debts formed by the husband and wife due to the exercise of the power of agency in daily family affairs, they will also form other creditor's rights and debts such as large loans and gifts with third parties. In order to protect the legitimate rights and interests of the spouse who has not raised debts, the law clearly stipulates that the debts incurred in such cases are not joint debts of the husband and wife in principle, and imposes the burden of proof on the creditor.

[Case source]: Lufa Case [2023] No. 499

31. Debts borne by one of the husband and wife in his or her own name during the marriage that exceed the daily needs of the family are not recognized as joint debts of the husband and wife -- Li Quanjin v. Lu Zhaorong, Guo Yaoying, and Li Liang, a private loan dispute

[Summary of the trial]:

During the existence of the husband and wife relationship, if one party borrows a large amount in his or her own name, which exceeds the daily needs of the family, and is used for lending, and the creditor fails to prove that the debt is used for the common life of the husband and wife, it is not a joint debt of the husband and wife, and the other spouse does not need to bear the responsibility of repayment.

Case Number: :(2018) Hu 01 Min Zhong No. 814

32. Loans during the marriage are still repaid jointly after divorce.

[Summary of the trial]:

During the period when the defendant Yu borrowed money from the plaintiff, the two defendants were husband and wife, and they still lived together and did not live apart, although the guarantor in the personal loan contract was not signed by the defendant Tao Jing himself, the reason why the defendant Tao Jing did not bear the joint responsibility for repayment on this ground was insufficient, and according to whether the signature of the plaintiff and the defendant Yu was signed by the plaintiff and the defendant Yu, the plaintiff did not know, and the debt was indeed included in the list of debts provided by the defendant Tao Jing and written by the defendant Yu when the two parties registered the divorce. However, the division of the debt between the two defendants does not affect the plaintiff's right to require the two defendants to bear joint liability for repayment. Therefore, the plaintiff's claim that the defendant Tao Jing should jointly repay the loan and the corresponding liquidated damages should be supported by this court.

Case Number: :(2016) Hu 0112 Min Chu No. 937

33. If one party claims to be a private loan, if one party claims to be a private loan, it should provide sufficient evidence to prove the agreement to borrow money - Wang v. Li, a private loan dispute case

[Summary of the trial]:

For parties with intimate status such as lovers and husband and wife, there will usually be a certain amount of money transfer between the two parties. If the party asserting the existence of a private lending legal relationship between the two parties only provides the transfer records to the court, and the other party can make a reasonable defense and interpretation, the "high degree of probability" of the existence of a lending agreement between the two parties cannot be established for the time being, and the party asserting the existence of a private lending legal relationship between the two parties also needs to submit other evidence to prove it, and if it cannot be proved, the court shall not find it to be a private lending.

34. Although one of the husband and wife holds an IOU, it cannot prove the circumstances of the loan - where the husband and wife holding the IOU claim repayment to the other party, but fail to provide evidence on the source of the loaned funds, the delivery of the money, and other facts, the conclusion of the loan cannot be drawn -- a private loan dispute between Liu and He

[Summary of the trial]:

Private lending refers to a civil legal act between natural persons, between natural persons and enterprises or other organizations, in which the lender lends the loan, and the borrower returns the loan when it is due and pays the interest according to the contract. The establishment of a civil legal act of borrowing must be premised on the agreement of the two parties, that is, the borrower and the borrower must form an agreement on the loan and actually pay the corresponding money. Where a party claims to return the loan based on the loan relationship, it shall bear the burden of proof for the necessary facts such as the loan agreement and the payment payment.

In this case, Liu and He did not agree on a separate property system after falling in love and getting married, but agreed on a separate property system for husband and wife when their marital relationship was in crisis and they had separated, and formed an IOU of 60,000 yuan the next day, and divorced through court mediation shortly after the IOU was formed. If there is indeed a loan relationship of 60,000 yuan between the two parties, according to common sense, combined with the age and education level of both parties, it should be dealt with at the time of divorce. Since the divorce agreement was signed voluntarily by both parties, and considering the identities and educational backgrounds of both parties, both parties can fully understand the true meaning and legal consequences of the IOU. Based on the special status of both parties, the sensitive period of the formation of the IOU, and the special agreement in the divorce agreement between the parties, it is not possible to conclude that there is a real, legal and effective loan relationship between the two parties based on the IOU alone. The judgment rejected Liu's application.

Case No.: :(2013) Tong Zhong Min Zhong Zi No. 1950

35. If the evidence provided by one party is insufficient to prove that there is an agreement between the two parties to lend money, and the other party claims that it was given as a gift when they are in love, the party should still bear the burden of proof for the establishment of the loan relationship - Zhang XX v. Li XX Private Lending Dispute Case

[Summary of the trial]:

If one party initiates a private lending lawsuit solely on the basis of the transfer voucher of a financial institution, and the other party claims that it was a gift made by both parties when they were in love, the party should still bear the burden of proof for the establishment of the lending relationship, and the evidence provided by the party is insufficient to prove that there is an agreement between the parties to lend money, the people's court will not support its claim for the return of the loan.

36. Regarding the joint debts of husband and wife - Li Bei and Zhao Xueru's private loan dispute

[Summary of the trial]:

The retrial court held that, on the issue of whether Zhao Minfeng should bear the liability for repayment, based on the facts ascertained in the original examination and the facts in the re-examination of this case, it can be seen that although only An Lei signed the IOU involved in the case, the relevant loans arose during the existence of the marital relationship between Zhao Minfeng and An Lei, and were used for stock speculation, which is a joint business between husband and wife. Zhao Minfeng's husband and wife joint debts.

Case Number: :(2018) Yu 07 Min Zhong No. 2674

37. The court usually recognizes the debts borne by one of the husband and wife during the marriage as joint debts of the husband and wife, and the other party shall bear joint and several liability. However, unless otherwise provided by law, the other spouse needs to bear the burden of proof, and if the evidence cannot be presented, the court will generally determine that it is a joint debt of the husband and wife - the plaintiff Liu Moujuan v. the defendants Li and Song Xiaoyan in a private lending dispute

[Summary of the trial]:

After Li and Liu Moujuan signed the loan contract, Liu Moujuan paid the amount agreed in the loan contract to Li, and Li should repay the principal and pay the agreed interest when due according to the loan contract. Li's failure to repay the principal and interest of the loan within the time limit has constituted a breach of contract, and he shall bear the responsibility of continuing to repay the principal and interest, and pay Liu Moujuan's attorney's fees and preservation costs for the realization of the creditor's rights in accordance with the loan contract. Song Xiaoyan and Li are husband and wife, and should bear joint responsibility for repayment of debts during the continuation of the husband and wife relationship. Therefore, Li's litigation claim has a contractual basis and a legal basis, and this court supports it.

Case No.: :(2014) Zheng Min Si Chu Zi No. 390

38. During the existence of the relationship between husband and wife, if one party borrows money for others in his or her own name, and there is no interest difference between borrowing and lending, and it is not for business or profit, and the spouse has no agreement to jointly raise debts, it should be found to be a personal debt - Zhen X v. Zheng Mouhua Private Lending Dispute Case

[Summary of the trial]:

The other spouse has the right to defend whether the debts incurred by one of the spouses in his or her personal name during the relationship are due to the common interests of the family. When the debtor helps others to borrow money, there is no interest difference between the borrowed money and the loan, the purpose of the loan is not business or profit, and the debtor's spouse does not have an agreement to jointly borrow debts, it can be determined that the loan in dispute is the debtor's personal debt and does not belong to the joint debts of the husband and wife.

Case No.: :(2016) Min 07 Min Zhong Zi No. 811

39. If the lender is unable to prove the existence of the loan agreement, it shall bear the burden of failing to provide evidence -- Wang v. Zhang, a private lending dispute

[Summary of the trial]:

In the absence of IOUs and other proof of creditor's rights, the existence of a loan relationship needs to be determined by comprehensively considering the relationship between the lender and the borrower, the circumstances in which the money was delivered, the reasonableness of the statements of both parties, and the probative force of the evidence. If the lender claims to borrow only on the basis of the transfer voucher, it still needs to bear the burden of proof on the existence of the loan agreement between the two parties, and if the lender cannot prove the existence of the loan agreement or the actual purpose of the loan, it shall bear the burden of proof that it cannot do so.

40. A case of private lending dispute between the plaintiff Zhou and the defendants Li and Yin

[Summary of the trial]:

After review, the court held that the defendant Li Moumou should return the loan in a timely manner according to the agreement, and the current defendant Li Moumou has not returned the loan in arrears, which constitutes a breach of contract, and the plaintiff should also be repaid for overdue interest and liquidated damages for overdue repayment. When the defendant Li XX borrowed the loan, although the two defendants were husband and wife, the amount of the loan at issue was relatively large, beyond the scope of ordinary household daily expenses, and the plaintiff did not provide evidence to prove that the loan was used for the common life of the two defendants, joint production and operation, or based on the common intention of the two defendants, so this court did not support the plaintiff's claim that the defendant Yin X should jointly bear the responsibility for repayment.

[Typical significance]:

Article 3 of the Interpretation on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Debts between Husband and Wife stipulates that if one of the spouses incurs a debt in his or her own name during the existence of the marital relationship that exceeds the daily needs of the family, and the creditor claims rights on the ground that it is a joint debt of the husband and wife, the people's court shall not support it, unless the creditor can prove that the debt was used for the husband and wife's common life, joint production and operation, or based on the common intention of the husband and wife. In this case, the provisions of this article were applied, and the interests of the creditor and the debtor's spouse were effectively balanced through a reasonable allocation of the burden of proof.

41. Gazette case: The party claiming that the external debts of one of the husband and wife are joint debts of the husband and wife bears the burden of proof - Shan Hongyuan and Liu Chunlin v. Hu Xiuhua, Shan Liang and Shan Yixian, a legal inheritance dispute

[Summary of the trial]:

Article 24 of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China is intended to strengthen the protection of creditors, and is generally only applicable to the treatment of external debt relationships between husband and wife. When a people's court handles a dispute involving the internal property relationship of the husband and wife, it cannot simply rely on the provisions to recognize the external debts of one of the husband or wife as joint debts of the husband and wife, and the effective judgments of other people's courts on disputes over external debts of husband and wife based on these provisions cannot be used as the basis for judgments in handling internal property disputes between husband and wife, and the party who asserts that the external debts of one of the husband or wife are joint debts of the husband and wife still bear the burden of proof to prove that the debts are indeed joint debts of the husband and wife.

Case No.: :(2005) Su Min Zhong Zi No. 61

42. How to determine that the loan borrowed by one of the husband and wife is used for the common life of the husband and wife, and then the husband and wife jointly bear the responsibility for repayment? ——Zhang Mousheng, Lin Moutuan, Zhang Anqi private lending dispute case

[Summary of the trial]:

Where there is a dispute between the parties as to whether the nature of the debt is a personal debt or a joint debt of the husband and wife, the people's court shall generally make a comprehensive judgment based on the respective work and economic situation of the husband and wife, as well as the relationship between the husband and wife and their contribution to the family economy.

[Rule Analysis]:

In judicial practice, the most common type of case involving the joint debts of husband and wife is that during the existence of the marital relationship, the creditor files a lawsuit with the people's court with a loan agreement signed with one of the spouses or an IOU issued by one of the spouses, claiming that the debtor and his or her spouse shall be jointly and severally liable for the debt. In such cases, some courts will add the debtor's spouse as a co-defendant, either at the request of the creditor or ex officio. After the spouse of the additional debtor participates in the lawsuit, as long as it is ascertained through the trial that the loan did indeed occur during the existence of the marital relationship, and the debtor and his wife did not implement the agreed property system, or although the agreed property system was implemented, they did not clearly inform the creditor at the time of borrowing, the debtor and his or her spouse will generally be jointly and severally liable for the debt. This is conducive to protecting the legitimate rights and interests of creditors and facilitating enforcement by the people's courts. However, if there is a dispute between the parties as to whether the nature of the debt is the personal debt of the borrower or the joint debt of the husband and wife, the people's court must make a judgment on the nature of the debt. Whether it is used for the husband and wife to live together is mostly judged based on the work and economic situation of the husband and wife, the relationship between the husband and wife, and the contribution to the family economy. If the debtor's spouse can prove that the debts borrowed by the debtor were not indeed used for the common life of the spouses, the spouse may be allowed to be exempt from the liability for repayment, and if it can be proved that the debts borrowed were used for the common life of the spouses, the spouse shall be liable for repayment.

Case No.: :(2011) Zhewen Shang Chu Zi No. 23 (2012) Zhe Shang Zhong Zi No. 32

[Case source]: The First Division of Civil Trial of the Supreme People's Court, "Case Guidance for the Trial of Private Lending Disputes", People's Court Press, August 2015, 1st edition.

43. The debts arising from the external guarantee of one of the husband and wife without authorization and the other party not benefiting from the guarantee act should be recognized as personal debts -- Yao v. Yunxin Real Estate Company and Zhang, a lawsuit against an outsider to enforce the objection

[Summary of the trial]:

The debts incurred by one of the spouses without authorization and the other party not benefiting from the guarantee shall be recognized as personal debts. In the process of enforcement, the legitimate rights and interests of the spouse should be properly protected. Although there are multiple immovable properties during the existence of the marital relationship, when the property is mortgaged or sealed, the efficiency of enforcement cannot be simply emphasized, and when necessary, the joint property of the husband and wife should be divided one by one to ensure the legitimate rights and interests of the spouse.

Case Number: :(2017) Zhe 08 Min Zhong No. 1074

44. The criteria for judging the joint debts of husband and wife are whether the husband and wife have agreed to jointly borrow debts and whether the husband and wife share the benefits brought by the debts -- Wang v. Zhang and Yang, a private lending dispute case

[Summary of the trial]:

According to the basic jurisprudence of day-to-day family agency, debts incurred by one of the spouses in his or her own name during the marriage are presumed to be joint debts of the husband and wife. When a husband and wife divorce, two criteria may be considered for the joint debts of the husband and wife that one party claims and the other party denies, that is, whether the husband and wife have an agreement to jointly borrow debts and whether the husband and wife share the benefits brought by the debts. The court shall make a determination based on the evidence provided by the parties and the ascertained facts. If one of the spouses acts clearly beyond the scope of family agency, he or she cannot be considered to have the power of family agency.

Case No.: :(2006) Min Min Yi (Min) Chu Zi No. 839

45. For money transactions between the two parties that do not indicate the nature of the money during the relationship, one party shall provide evidence to prove that there is a loan agreement on the transfer of funds-Xu v. Yang, a private lending dispute

[Summary of the trial]:

In private lending disputes, the transfer of an amount of money with special meaning between the two parties during the relationship is generally recognized as a gift because it is necessary to express love. For other monetary transactions that do not indicate the nature of the money, the loan amount cannot be offset simply by the difference between the two parties, and one party shall provide evidence to prove that there is a loan agreement on the transferred money before it can be deducted.

46. Where a traffic accident arises from an individual's tortious act and the spouse is not at fault, it cannot be found to be a joint debt of the husband and wife.

[Summary of the trial]:

The Shanxi Provincial High People's Court held that joint debts between husband and wife refer to debts arising from the needs of both husband and wife or one of them to maintain their common life, or to engage in business activities for the purpose of living together. The criterion for judging whether a debt is a joint debt of the husband and wife is whether the debt is a debt incurred by the husband and wife for their common life, and whether one or both spouses have made necessary expenditures and inputs to maintain common production and family life, and the debts created therefrom and the debts in which the husband and wife derive benefits from the debts incurred are the joint debts of the husband and wife. In this case, the debts formed by the husband and wife of Lieutenant Xiaokang and Li Xiaoli, who caused damage to the person and property of the retrial applicant Zhang Feng, caused by the tortious acts committed by Lieutenant Xiaokang and Li Xiaoli, were the debts of tortious acts formed by Wei Xiaokang's personal tortious acts and subjective faults, and the debts were not necessary expenditures and inputs formed to maintain the joint production and life of the husband and wife, so they did not meet the characteristics of joint debts of husband and wife. The other party in the husband and wife, Li Xiaoli, did not commit the tortious act, and was not subjectively at fault, so she did not meet the constitutive elements of tort liability, so she should not bear the debts arising from the damage caused by Wei Xiaokang. Article 18 of the Marriage Law of the People's Republic of China stipulates: 'In any of the following circumstances, it shall be the property of one of the husband and wife. (2) Medical expenses, living allowances for the disabled, and other expenses received by one party as a result of bodily injury. It can be seen that the compensation received by one of the husband and wife for the physical infringement is not the joint property of the husband and wife, but the personal property of one of the spouses, and relatively speaking, the tortious debt of one of the husband and wife to others is not the joint debt of the husband and wife, but the personal debt of the torting party. In summary, debts arising from the tortious acts of one of the husband and wife causing damage to the person or property of others should not be recognized as joint debts of the husband and wife.

Case No.: :(2017) Jin Min Shen No. 1428

47. There is no necessary connection between the use of the vehicle involved in the accident and whether the tortious debt is agreed upon by the husband and wife or used for the joint production and life of the family, and the tortious debt arising from the traffic accident is sudden and uncertain, and is not the necessary expenditure or investment of the husband and wife to maintain the joint production and life of the family, and the husband and wife cannot obtain benefits from it, so it cannot be recognized as a joint debt of the husband and wife.

[Summary of the trial]:

The Beijing No. 1 Intermediate People's Court held that the focus of the dispute in this case was whether the tortious debt incurred by Zeng should be recognized as a joint debt of the husband and wife. According to the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Debts between Husband and Wife, the determination of whether a debt is a joint debt of the husband and wife should be comprehensively considered whether the debt is based on the agreement of the husband and wife or whether the debt is used for family life or joint production and operation. The debt involved in this case is a tortious debt arising from a traffic accident. First of all, according to the traffic accident liability determination, the traffic accident was caused by Zeng's unilateral tortious act, and Zhang's injury was also caused by Zeng's tortious act, and Deng did not commit tortious acts against Zhang, and was not subjectively at fault. Second, there is no necessary connection between whether the vehicle driven at the time of the traffic accident was used to deliver milk and whether the debt was agreed upon by the husband and wife or used for the joint production and life of the family, and it cannot be inferred that the tortious debt arising from the traffic accident was borne by the family because the vehicle was driven by Zeng X when delivering milk, and Zhang did not submit sufficient evidence to prove that Zeng X had a traffic accident on the way to deliver milk. Finally, the tortious debt arising from the traffic accident is sudden and uncertain, and is not the necessary expenditure or investment of the husband and wife to maintain the joint production and life of the family, and the husband and wife cannot obtain benefits from it, so the tortious debt incurred by Zeng X based on the traffic accident in this case cannot be recognized as a joint debt of the husband and wife, and this court does not support Zhang's appeal claim.

Case No.: :(2019) Jing 01 Min Zhong No. 3660

48. When the husband and wife divorce and agree that the joint debts shall be borne by one party, what should the creditor do?

[Summary of the trial]:

After trial, the court held that according to the receipts submitted by the plaintiff, it could be determined that a de facto contractual relationship for the supply of ship materials and spare parts had been formed between the plaintiff and the defendant Xu Moumou. As both parties to the contract, they shall perform their respective obligations in accordance with the agreement. Under the circumstance that the plaintiff has provided the ship materials to the defendant Xu Moumou in accordance with the contract, the defendant Xu Moumou has the obligation to repay the plaintiff the material price of 181,870 yuan according to the amount contained in the receipt. In view of the fact that the plaintiff has received 50,400 yuan from the defendant Wang, and the remaining materials are 131,470 yuan, the defendant Xu has the obligation to pay.

With regard to the plaintiff's claim that the defendant Xu XX should pay the plaintiff interest from the date of filing the lawsuit to the date of actual repayment at the loan market prime interest rate announced by the National Interbank Funding Center based on the amount of material money owed by the defendant Xu Moumou, in view of the fact that the receipt involved in the case did not stipulate the time of payment of the material payment, according to Articles 61 and 161 of the Contract Law of the People's Republic of China, when there is no agreement between the two parties and it cannot be determined in accordance with the transaction customs, the payment for the materials involved in the case shall be deemed to be delivered immediately. The plaintiff's claim to calculate interest at the loan market prime rate published by the National Interbank Funding Center from the date of filing the lawsuit to the date of actual repayment is in accordance with the provisions of Article 113, Paragraph 1 of the Contract Law of the People's Republic of China, and should be supported.

With regard to the plaintiff's request for the defendant Wang to bear joint and several repayment of the above-mentioned debts, in view of the fact that the above-mentioned debts occurred during the marriage of the two defendants, the defendant Wang's repayment of the material money to the plaintiff is sufficient to prove that the debts involved in the case were incurred in the course of the joint operation of the two defendants, and according to the provisions, the defendant Wang XX should bear joint and several liability for repayment. Although the two defendants stipulated in the divorce agreement that the debts incurred during the marriage relationship between the two parties would be borne by the defendant Xu XX, the agreement was an agreement between the two defendants, which could only bind the two defendants, not the plaintiff, and could not exempt the defendant Wang XX from the liability for debt repayment.

To sum up, in accordance with the relevant laws and regulations, the defendant Xu Moumou was ordered to repay the plaintiff 131,470 yuan and interest; Defendant Wang XX and defendant Xu XX are jointly and severally liable for the above debts.

In this case, the relevant receipts were signed by one of the husband and wife in his or her own name, and the plaintiff claimed that the corresponding debts were incurred in the course of the husband and wife's joint production and operation, and the plaintiff bore the burden of proof for this. To determine whether it is a joint production or operation of husband and wife, it is necessary to make a comprehensive determination based on the nature of the business activities and the status and role of the husband and wife in it. During the existence of the relationship between husband and wife, the defendant Xu XX purchased marine materials from the plaintiff many times, and the defendant Wang XX repaid the material payment to the plaintiff through bank transfer and cash payment many times, and the purchase and payment can form a corresponding relationship, which is sufficient to determine that the above-mentioned debts are incurred in the course of the joint production and operation of the husband and wife, and meet the requirements of Article 3 of the "Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Debts between Husband and Wife" on the determination of joint debts of husband and wife, and the two defendants should bear joint and several liability for repayment.

Another focus of controversy in this case is whether the agreement in the divorce agreement between the two defendants that "all debts incurred during the marriage shall be borne by the man" can be used as a basis for exempting the defendant Wang Moumou from the liability for repaying the debts involved in the case. The above situation occurs from time to time in real life, and the party who does not bear the debt in the divorce agreement often defends that he should not be liable for repayment when facing the creditor's recovery or lawsuit. In this regard, according to the provisions of relevant laws and judicial interpretations, the divorce agreement is only binding on the divorce parties and cannot be used against a third party, otherwise the legitimate rights of the creditor will be damaged, that is, the creditor still has the right to claim rights against the husband and wife. At the same time, after one party bears the responsibility for repaying the joint debts of the husband and wife, he or she may claim that the other party shall bear the corresponding debts in accordance with the divorce agreement or the legal documents of the people's court. In this case, after the defendant Wang XX assumed the liability for repayment, he could separately claim the corresponding liability from the defendant Xu XX in accordance with the divorce agreement.

[Case source]: Lufa Case (2023) No. 593

49. When only the proof of payment delivery is provided but the certificate of loan agreement is not provided, the lender still needs to bear the burden of proof for the establishment of the loan relationship - Sun XX v. Feng XX Private Lending Dispute

[Summary of the trial]:

The lender submitted evidence of payment to the borrower, which can prove that there were mutual fund transactions between the two parties, but neither party provided evidence to prove the nature of the fund exchanges, and the lender, as the party claiming the existence of a private lending relationship between the two parties, should bear the adverse consequences.

50. The other spouse has neither the right to control the operation of the vehicle nor the benefits of operation, so the debt of traffic accident tort should be his personal debt.

[Summary of the trial]:

The Jilin Provincial High People's Court held that Guo Mouchao's statement that the car was purchased with his actual capital and that the car was placed in the name of Jiaxin Company for transportation operations, and that the vehicle affiliation service agreement corroborated Guo Mouchao's statement, which was sufficient to determine that Guo Mouchao and Jiaxin Company were in a vehicle affiliation relationship, and Jiaxin Company's retrial argument that the two parties were in a vehicle sales relationship rather than a vehicle affiliation could not be established, and this court did not support it. Article 3 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases Involving Compensation for Damages in Road Traffic Accidents stipulates that: "If a motor vehicle engaged in road transport business in the form of affiliation causes damage caused by a traffic accident, it is the responsibility of one party to the motor vehicle, and the people's court shall support the request of the parties that the affiliated party and the affiliated party bear joint and several liability." Jiaxin's argument that it should not bear joint and several liability for the retrial cannot be established, and this court does not support it; The driver who caused the accident, Wang Zhengang, was employed by the owner Guo Mouchao, and Wang Zhengang's wife, Liang Lili, had no right to control the operation of the car, nor did she enjoy the benefits of operation, so Wang Zhengang's tortious debt should be his personal debt. In this case, two people died in a motor vehicle traffic accident, one of whom had an urban household registration and the other had a rural household registration, and the original trial court ruled that Article 17 of the Tort Liability of the People's Republic of China was applied in order to unify the compensation standards, "where multiple people die as a result of the same tortious act, the death compensation may be determined in the same amount." "It is not improper to determine the amount of compensation based on the urban standard, so Jiaxin Company's argument that the compensation standard of Zhao Xia and Zhang Yanglin should be calculated according to the rural standard cannot be established, and this court does not support it.

Case Number: :(2017) Ji Min Shen No. 2436

51. After the divorce, the loan borrowed by one of the husband and wife to repay the joint debts during the existence of the marital relationship is still the joint debts of the husband and wife -- Wang Jianping v. Wang Caixia et al., a private lending dispute case

[Summary of the trial]:

If the divorce is used to repay the debts of the family living together during the marriage, such as the bank loan for the marital house, then the loan is still a joint debt of the husband and wife and must be repaid by the two of them.

Case Number: :(2010) Er Zhong Min Zhong Zi No. 22343

52. After the divorce, the IOU issued by an individual for the debts owed during the existence of the marital relationship should be personal debts -- Jiang Zhaoli v. Pang Lei et al., a private lending dispute case

[Summary of the trial]:

Debts owed by the perpetrator during the existence of the marital relationship, but the IOU provided is written by the actor after the divorce, the debt should be the debt of one of the parties, not the joint debt of the husband and wife. Because if the IOU is written by the individual after the divorce, then the act of changing the IOU should be deemed to have re-established the creditor-debtor relationship between the parties. At this time, the husband and wife are divorced, so it is up to one party to pay the debt. This not only protects the legitimate rights and interests of creditors, but also avoids the unwitting and unbeneficiary party in the marriage relationship from falling into difficulties.

Case No.: :(2009) Min Zai Chu Zi No. 13

53. The traffic accident occurred during the existence of the marital relationship, and both husband and wife were family co-owners of the vehicle that caused the accident. According to Article 24 of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China and the Supplementary Provisions of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China, there is a factual and legal basis for the court to order the other party to the marriage to bear the liability for the debts arising from the damage caused by the traffic accident.

[Summary of the trial]:

The Heilongjiang Provincial High People's Court held that on September 6, 2011, when Liang Peng was driving his car along the Suiman Highway, he crashed into Liu Jinbao and Ding Sheng, who were sitting on the side of the road, causing Liu Jinbao to die on the spot, Ding Sheng died after rescue efforts failed, and Li Zhiying, a person in the car, died after rescue efforts failed. The No. 20110906 road traffic accident certificate issued by the Traffic Police Brigade of the Gannan County Public Security Bureau determined that Liang Peng had violated the "Road Traffic Safety Law of the People's Republic of China" by driving a motor vehicle and was fully responsible for the accident. Although Yu Lei asserted that the connection between Ding Sheng's damage and Liang Peng's conduct was doubtful, the road traffic accident determination made a clear determination of the causal relationship between Ding Sheng's damage and Liang Peng's tortious act. According to Article 2 of the Tort Liability Law of the People's Republic of China, which stipulates that 'infringement of civil rights and interests shall bear tort liability in accordance with this Law' and Article 3 of which 'the infringed party has the right to request the infringer to bear tort liability', Liang Peng shall bear the civil liability for this traffic accident. The traffic accident occurred during the existence of the marital relationship between Liang Peng and Yu Lei, Liang Peng had died in the traffic accident, and Yu Lei admitted that the vehicle that caused the accident was owned by him during the investigation by the traffic police department and the original trial court, so the vehicle driven by Liang Peng was the joint property of the husband and wife of Yu Lei, and Yu Lei was the family co-owner of the vehicle that caused the accident. According to Article 24 of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China, "Where a creditor claims rights in respect of a debt incurred by one of the spouses in his or her own name during the existence of the marital relationship, it shall be treated as a joint debt of the husband and wife." However, unless one of the husband and wife can prove that the creditor and the debtor have expressly agreed that it is a personal debt, or can prove that it falls under the circumstances provided for in the third paragraph of Article 19 of the Marriage Law' and the Supplementary Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China, Yu Lei, as the wife of the perpetrator Liang Peng, is a qualified subject in this case, and there is a factual and legal basis for the court of first instance to order Yu Lei to bear the liability for the debts caused by Liang Peng's damage caused by the traffic accident.

Case Number: :(2019) Hei Min Zai No. 378

54. The determination of whether the debts incurred by one party as a result of infringement during the existence of the husband and wife relationship are joint debts of the husband and wife shall be based on the interests of the tortious act. If the vehicle involved was purchased during the existence of the relationship between the husband and wife, and the traffic accident occurred because the husband and wife jointly owned and shared the benefits of use, then the resulting tort debt should be recognized as a joint debt of the husband and wife.

[Summary of the trial]:

The High People's Court of Xinjiang Uygur Autonomous Region held that Duan Linhong should be liable for compensation for Du Qizhi's tortious debts. The reasons are as follows: the determination of whether the other party needs to bear joint and several liability for the tortious act of one party during the existence of the marital relationship should be based on the interests of the tortious act. The vehicle involved in this case was purchased by Duan Linhong and Du Qizhi during the existence of the husband and wife relationship, and at the time of the traffic accident, the vehicle was the joint property of the husband and wife and was used by the husband and wife in their family life, and the two jointly managed it and enjoyed the benefits of its use. At the time of the incident, Du Qizhi's driving behavior was an act carried out for the common interests of the husband and wife, and the resulting tortious debt should be recognized as a joint debt of the husband and wife. It was not inappropriate for the court of first and second instance to order Duan Linhong and Du Qizhi to bear joint liability for the debts involved in the case.

Case Number: :(2022) Xin Min Shen No. 1010

55. The joint debts of husband and wife should not only be based on the existence of the marital relationship, but should also examine whether the money is borne by the common life -- Shandong Haoxi Economic and Trade Co., Ltd. v. Zhu Junqiang and Xu Ping, a private loan dispute

[Summary of the trial]:

Whether or not one of the debts incurred by one of the spouses during the existence of the marital relationship is a joint debt of the husband and wife should not only be based on the existence of the marital relationship, but also whether the money is borne by the common life. Reasonable debts incurred during the marriage as a result of daily life or joint production, even if one of the spouses incurs debts, shall be joint debts of the husband and wife. However, on matters that exceed the power of representation in the daily affairs of the husband and wife, the husband and wife shall negotiate on an equal footing and reach a consensus. Where others have reason to believe that it is an expression of the common will of the husband and wife, the other party must not oppose the bona fide third party on the grounds that they do not agree or do not know. The third party should bear the burden of proof for his or her own "reasonable belief".

Case No.: :(2014) Zimin Yi Zhong Zi No. 729

56. Determination of Loan Principal, Guarantee Relationship and Joint Debts of Husband and Wife in Private Lending Cases -- Lin v. Yang et al., a private lending dispute

[Summary of the trial]:

The guarantor and the creditor may enter into separate guarantee contracts for a single main contract, or they may agree to conclude a guarantee contract within the maximum amount of claims for a loan contract or a commodity transaction contract that occurs continuously for a certain period of time.

If the plaintiff submits proof of creditor's rights and the defendant raises objections to the amount of the loan, the plaintiff shall bear the corresponding burden of proof, and the court shall comprehensively determine the actual amount of the loan based on the parties' statements in court, the method of delivery, and the time of delivery.

The joint debts of the husband and wife shall be the debts incurred by the husband and wife as a result of living together, and shall be comprehensively determined from the perspective of whether the husband and wife have an agreement to jointly borrow debts and whether they have shared the benefits brought by the debts.

Case No.: :(2014) Sui Zhong Fa Min Jin Zhong Zi No. 909

57. How should private lending disputes and divorce disputes where one of the husband and wife maliciously collude with a third party to fabricate marital debts, and how should they be determined and handled? ——A private lending dispute between Zhao and Xiang Moumin

[Summary of the trial]:

I. If one of the husband and wife is suspected of maliciously colluding with a third party and fabricating marital debts through false litigation, the unilateral admission of debts by one of the husband and wife does not necessarily exempt the "lender" from the burden of proof for the fact that the loan relationship has been established and effective.

II. If the lender only provides an IOU to support the lending relationship, it shall conduct an in-depth investigation of the supporting facts to judge the authenticity of the loan agreement, such as the necessity of borrowing and the reasonableness of the use of the funds. If the lender is unable to provide evidence to prove the fact of loan delivery, it shall comprehensively consider factors such as the lender's economic situation, source of funds, method of delivery, and witnesses present to determine the credibility of the parties' statements.

III. For a large amount of loans, if there is only an IOU without any proof of delivery, and there are major doubts or contradictions in the statements of the parties, it shall be determined that the "lender" has not fulfilled the burden of proof in accordance with the rules of evidence, and the judgment shall reject the request. If the borrower's spouse does not participate in the litigation and neither the lender nor the borrower expressly waives their share of the debts that the spouse may bear, in order to ascertain the facts of the case, the borrower's spouse who has an interest in the outcome of the case shall be added as a third party to participate in the litigation in accordance with the law, so as to form a substantive confrontation.

[Rule Analysis]:

Some of the private lending dispute cases heard by the people's courts are essentially the determination and handling of the joint debts of the husband and wife. In judicial practice, there are not only the phenomena of collusion between the debtor and the husband and wife to damage the interests of the creditor through fake divorce, improper disposal of property, etc., but also the phenomenon of malicious collusion between one spouse and a third party to defraud the property of the other spouse. The people's courts shall, in accordance with the provisions of the Marriage Law and its judicial interpretations, take into account the circumstances of the case, prevent and sanction false lawsuits, and determine the authenticity of the facts of the loan and bear responsibility in accordance with law. In divorce cases where no other person is involved, the burden is on the spouse who has incurred the debt in his or her own name to prove that the debt borrowed was used for the common life of the spouses, and if the evidence is insufficient, the spouse may not be liable for repayment. In a debt dispute case where the creditor sues one of the husband and wife as the defendant, whether the debts involved in the case are joint debts of the husband and wife shall be determined in accordance with Article 24 of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China. If the debtor's spouse proves that the debt was not used for the purpose of living together as husband and wife, the borrower may not be liable for repayment.

Case No.: :(2012) Chang Min Yi (Min) Chu Zi No. 6886

Source of the case: Gazette of the Supreme People's Court, No. 12, 2014

58. Providing a guarantee for a spouse's loan can be recognized as a joint debt of husband and wife -- Huang XX v. Hu XX and Wan XX, a guarantee contract dispute case

[Summary of the trial]:

During the existence of the husband and wife relationship, if one of the husband and wife acts as a guarantor to provide joint and several liability guarantee for the spouse's loan, and signs the guarantee contract, and the husband and wife indicate that they have a common intention to borrow the debt by way of guarantee, which is sufficient for the creditor to have a trust interest, it shall be recognized as a joint debt of the husband and wife.

[Case document number] :(2022) Gan 0123 Min Chu No. 717

59. One of the husband and wife signed the IOU established by the spouse as a certifier to confirm that the loan could not be recognized as a joint debt of the husband and wife -- a private loan dispute between Shi Chengtao and Li Buming and Xu Rongfen

[Summary of the trial]:

During the existence of the marital relationship, if one of the husband and wife borrows debts externally, and the spouse signs and confirms the debt certificate as a witness, but denies that it is a joint debt of the husband and wife, and the creditor has no evidence to prove that he is a joint debtor, it is not appropriate to determine that it is a joint debt, but shall be determined to be a personal debt of one of the husband and wife according to the relativity of the contract.

Case Number: :(2018) Su 0923 Min Chu No. 587

60. The debts raised by one of the husband and wife in partnership with others are generally not recognized as joint debts of the husband and wife, unless the creditor can prove that the debts are used for the common life, production and operation of the husband and wife, or based on a common expression of intent——Ye Deli v. Chen Juliang, Guo Danyan, Wang Zhifeng, Lian Wenzhen, a private loan dispute

[Summary of the trial]:

Where one of the husband and wife raises debts in partnership with others during the existence of the marital relationship, and the creditor claims rights on the ground that they are joint debts of the husband and wife, it is not supported, except where the creditor can prove that the debts were used for the husband and wife's common life, joint production and operation, or based on the joint intention of the husband and wife.

Case Number: :(2017) Min 0505 Min Chu Zi No. 1518

61. The Beijing Shunyi District People's Court's reasoning in the judgment on the joint debts of husband and wife

[Summary of the trial]:

The Beijing Shunyi District People's Court held that since this case did not involve the issue of joint and several liability as stipulated in the Tort Liability Law, the substantive focus of the dispute in this case was whether Zhao's liability (debt) arising from the traffic accident was a joint debt of the husband and wife, and whether Li should be jointly and severally liable with Zhao.

(1) As far as the conditions for determining the joint debts of husband and wife are concerned

Generally speaking, joint debts of husband and wife refer to the debts incurred by one or both spouses during the existence of the marital relationship to maintain the common life of the marriage and family, or to jointly produce and operate business activities. At present, the legal provisions on joint debts of husband and wife currently in force in mainland China mainly include: 1. Article 41 of the Marriage Law of the People's Republic of China (hereinafter referred to as the "Marriage Law") stipulates that at the time of divorce, the debts originally incurred by the husband and wife living together shall be repaid jointly. 2. Article 24 of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (hereinafter referred to as the "Judicial Interpretation II of the Marriage Law") stipulates that if a creditor claims rights in respect of a debt incurred by one of the spouses in his or her own name during the existence of the marital relationship, it shall be treated as a joint debt of the husband and wife. However, one of the husband and wife can prove that the creditor and the debtor have expressly agreed that it is a personal debt, or can prove that it falls under the circumstances provided for in paragraph 3 of article 19 of the Marriage Law. Where one of the husband and wife colludes with a third party to fabricate debts, and the third party claims rights, the people's court will not support it. Where a third party claims rights for debts incurred by one of the spouses in the course of engaging in illegal or criminal activities such as gambling or drug abuse, the people's courts will not support it. 3. Article 1 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Debts between Husband and Wife (hereinafter referred to as the "Judicial Interpretation on the Trial of Debts of Husband and Wife") stipulates that debts borne by the husband and wife shall be recognized as joint debts of the husband and wife if they jointly sign or one of the husband and wife later recognizes the debts of the husband and wife. Article 2 stipulates that if a creditor claims rights for debts incurred by one of the husband and wife in his or her own name for the daily needs of the family during the existence of the marital relationship on the ground that they are joint debts of the husband and wife, the people's court shall uphold them. Article 3 stipulates that if a creditor claims rights for debts incurred by one of the husband and wife in his or her own name during the existence of the marital relationship in excess of the daily needs of the family on the ground that they are joint debts of the husband and wife, the people's court shall not support them, unless the creditor can prove that the debts were used for the husband and wife's common life, joint production and operation, or based on the common intention of the husband and wife.

From the above-mentioned legal provisions, it is not difficult to see that the Marriage Law and the Judicial Interpretation on the Trial of Marital Debts focus on whether the debts are based on common living, joint production and operation, and common expressions of intent, while the Judicial Interpretation II of the Marriage Law focuses more on whether the debts occur during the existence of the marital relationship. As a basic law, the level of effectiveness of the Marriage Law is significantly higher than that of the judicial interpretation, so the conditions for the recognition of joint debts in the Judicial Interpretation of the Marriage Law (II) can only be a refinement, supplement and interpretation of the relevant provisions of the Marriage Law, and must not be abandoned or encroached upon. Article 1064 of the Civil Code of the People's Republic of China, which has not yet come into effect, also stipulates that debts incurred by both husband and wife as jointly signed by both husband and wife or by one of the husband and wife as a result of a joint expression of intent, as well as debts incurred by one of the husband and wife in his or her own name during the existence of the marital relationship for the daily needs of the family, 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.

To sum up, there are two forms of recognition of joint debts between husband and wife:

First, self-recognition and identification. That is, the debts agreed by the husband and wife are, of course, joint debts of the husband and wife, which belong to the category of autonomy of the husband and wife.

Second, presumptive determination. That is, if one of the husband and wife who is not borrowing debts does not recognize the debt as a joint debt, the court shall conduct a general rational person review and meet the requirements for the constitution of a joint debt, and the debt shall be presumed to be a joint debt.

At this time, there should be two constituent elements for determining the joint debts of the husband and wife: first, the debts must arise during the existence of the marital relationship between the parties; The second is whether the debt arises from the husband and wife living together, joint production and operation, or is used for the husband and wife's common life, production and operation. Otherwise, according to the current legal provisions, the creditor shall provide evidence to prove that the debt is used for the husband and wife's common life, joint production and business, or based on the common intention of the husband and wife.

(2) The legal basis and conflict of the determination of joint debts

The legal basis for determining the joint debts of husband and wife should generally be traced back to the system of daily family agency, which refers to the system in which the legal acts performed by the husband and wife when they interact with a third party due to daily affairs should be regarded as the joint expression of the will of the husband and wife, and the other spouse shall bear joint and several liability. The right of agency in daily family affairs refers to the right of husband and wife to act as each other's agents for daily family affairs, and one party may act for the other party to carry out certain civil activities on daily family affairs. That is, similar to the current laws in force in the mainland, the debt is used for the daily life of the family, the husband and wife living together, etc. While protecting the legitimate rights and interests of creditors, the recognition of joint debts of husband and wife has a new value orientation - interests and purposes, and it is necessary to confirm whether the purpose of the debt is beneficial to the common life, production and operation of the husband and wife, and whether it is more conducive to the beneficial survival of the marital relationship.

It can be seen from this that the determination of the joint debts of husband and wife inherently has a conflict between the protection of the legitimate rights and interests of the creditor and the protection of the legitimate rights and interests of the non-debtor during the marriage, which is the balance and confrontation between the two rights and interests. However, it must be pointed out that the essence of marriage lies in ethics, that is, to return the relationship between husband and wife to its original state. The ethics of marriage is the basic element of marital security, and from the perspective of public policy, transaction security and marital security cannot be neglected, and one party has no absolute priority over the other. There is no question of who is higher or lower in the interests of the husband and wife and the interests of creditor's rights. Then, how to balance these two value orientations will inevitably have a great impact on the recognition of the joint debts of husband and wife.

(3) In terms of the type of debt

Debts are generally divided into contractual debts and tortious debts. In the determination of joint debts of husband and wife, there is also a fundamental difference between tort debts and contractual debts. In the case of joint debts between husband and wife caused by contractual debts, when the counterparty to the contract has claims and debts with one of the husband and wife, based on the awareness of market risks and its own duty of prudent care as a creditor, it may choose to request to avoid risks in the form of joint debts and co-signing, so as to protect the interests of the non-debtor among the husband and wife; Even if the other party to the contract does not have a "joint debt" in the debts of the contract, as long as it is proved that the main purpose of the debts under the contract is for the husband and wife to live together, joint production and operation, it can be presumed that the debts of the contract are joint debts of the husband and wife. Common joint debts of husband and wife are contractual debts, such as joint living debts incurred for the purchase of household daily necessities, payment of family living expenses, improvement of family living conditions, raising and educating children, support and support of parents, etc. Production and operation debts incurred by engaging in individual industrial and commercial, operation, investment or other financial securities trading activities and the income is used for common life.

The tortious debt is generally the liability caused by the tort, and the tort is often accidental and unpredictable. When the tortious act is committed by one of the husband and wife without the mutual agreement of both parties, it is necessary to examine whether the tortious act meets the requirements of the husband and wife living together and jointly producing and operating together in light of the circumstances of the tort itself, and at the same time, in light of the characteristics of the tort itself, comprehensively determine whether the liability for compensation caused by the tortious act (tortious debt) is a joint debt of the husband and wife. It is not difficult to see from the above that the conditions for determining the joint debts of husband and wife are stricter and more cautious than those of contractual debts, and the emphasis on value inclination is also different.

(4) The tortious debt is determined to be a joint debt of the husband and wife

According to the current legal provisions, the tortious debt shall be determined to be a joint debt of the husband and wife, and the above constituent elements shall also be followed.

First, in terms of self-admission, if the tortious debt recognized by both husband and wife is a joint debt of the husband and wife, the debt is of course a joint debt of the husband and wife.

Second, in terms of presumption, that is, if the non-debtor does not recognize it, it is necessary to examine whether the tortious debt is used for the husband and wife to live together and jointly produce and operate. However, the tortious debt itself is a negative debt (mostly a liability for compensation), and the debt itself cannot be beneficial to the husband and wife's common life and joint production and operation, so when reviewing, this court believes that it should examine whether the tortious act is suitable for the husband and wife's common life and joint production and operation. If the tortious act goes beyond the circumstances of the husband and wife living together, joint production and operation as understood by a reasonable person, then it should not be directly presumed to be a joint debt of the husband and wife, but the burden of proof should be placed on the creditor's side, and the creditor should provide evidence to prove that the tortious debt is in line with the circumstances of the husband and wife's common life and joint production and operation, otherwise the creditor should bear the legal consequences of failing to provide evidence. Taking the tort of common motor vehicle traffic accidents as an example, most of these torts are violations of relevant traffic laws and regulations, failure to drive prudently, resulting in losses to the person or property of others, thus giving rise to corresponding liability for compensation and forming tort debts.

Then, the tortious debt itself cannot be beneficial to the husband and wife's common life and joint production and operation, but whether the driving act itself is beneficial to the husband and wife's common life and joint production and operation requires a specific analysis of specific issues, which is also an important factor in judging whether the tortious debt generated by the tortious act is a joint debt of the husband and wife. If the vehicle involved in the accident is in operation at the time of the traffic accident, and the operating income is also used for the normal living expenses of the family, then the tortious debt should be deemed to be a joint debt of the husband and wife; However, if a traffic accident occurs, and the driving behavior is not beneficial to the husband and wife living together, joint production and operation, it cannot be easily determined as a joint debt of the husband and wife, but should be comprehensively judged in combination with the evidence presented by the creditor. To sum up, this court holds that when presuming whether the tortious debt is a joint debt of the husband and wife, it should be comprehensively considered from the perspective of a reasonable person and in combination with various factors such as the cause, time, place, and process of the infringement and whether the other spouse is aware of it, starting from whether the tortious act is beneficial to the common life and joint production and operation of the husband and wife, emphasizing the 'commonality', and determining whether the tortious debt is a joint debt of the husband and wife on the basis of weighing whether the tortious act has shared interests between the husband and wife, so as to realize the sharing of risks between the husband and wife. Otherwise, the rule of burden of proof should be used to determine whether it is a joint debt of the husband and wife.

Case Number: :(2020) Jing 0113 Min Chu No. 3286

62. Determination of the nature of debts formed by one of the husband and wife providing security for the debts of others

【Viewpoint Analysis】:

First, most of the personal guarantees that exist in real life are gratuitous guarantees, and the guarantor has neither obtained benefits from the creditor nor the consideration from the debtor, and the guarantee provided by the guarantor does not increase the joint property of the husband and wife, and the relevant debts are not used for family life, thus blocking the connection between the guarantee debt and the joint debts of the husband and wife. Therefore, the liability of one spouse to a third party formed by providing security for the debts of others is to provide security for the debts of others on the basis of personal credit, which does not involve the interests of the husband and wife or the family, and the debts are not joint debts of the husband and wife.

Second, if one of the husband and wife provides a guarantee for the debts of others, obtains economic benefits through the guarantee and uses them for the common life of the family, for example, if the loan contract clearly stipulates that the loan interest rate is 2% per month and the guarantor's income is 0.5%, the guarantee is closely related to the joint life of the husband and wife, and the corresponding debt shall be recognized as the joint debt of the husband and wife.

Third, if one party, as the legal representative of a husband and wife company, borrows money in his or her own name during the existence of the marital relationship for the company's operation or provides guarantee for the company's loans, the loan or secured debt shall be recognized as a joint debt of the husband and wife.

[Source of opinion]: Jiang Bixin, editor-in-chief, Lectures on the Application and Practice of the Civil Code of the People's Republic of China (Volume II), People's Court Press, 2020 edition.

63. The court generally supports the lawyer's fee stipulated in the loan contract and actually paid it - plaintiff Liu Juanjuan sued defendants Li Tong and Song Xiaoyan in a private loan dispute

[Summary of the trial]:

The court held that after Li Tong and Liu Juanjuan signed the loan contract, Liu Juanjuan paid the money agreed in the loan contract to Li Tong, and Li Tong should repay the principal and pay the agreed interest when due in accordance with the loan contract. Li Tong's failure to repay the principal and interest of the loan within the time limit has constituted a breach of contract, and he shall bear the responsibility of continuing to repay the principal and interest, and pay Liu Juanjuan's attorney's fees and preservation costs for the realization of the creditor's rights in accordance with the loan contract. Song Xiaoyan and Li are both husband and wife, and should bear joint responsibility for repayment of debts during the continuation of the husband and wife relationship. Therefore, Li Tong's litigation claim has a contractual and legal basis, and this court supports it.

Case No.: :(2014) Zheng Min Si Chu Zi No. 390

Shanxi Taiyuan Chang Lawyer Key words:

Legal Advice, Professional Lawyer, Writing Complaints, Lawyer Consultation, Loan Disputes, Criminal Defense, Criminal Interviews, Release on Bail, Case Entrustment, Housing Leasing, Private Lending, Tort Disputes, Damages, Creditor's Rights and Debts, Legal Knowledge, Legal Knowledge, Legal Risks, Traffic Accidents, Contract Invalidation, Contract Termination, Third Party Revocation, Right of Revocation, Enforcement Objection, Enforcement, Judgment Debtor, Blacklist, Dishonest Person, Restricted Consumption, Equity Transfer, Company Business, Articles of Association, Partnership Disputes, Legal Counsel, Inheritance, Real Estate Inheritance, Testamentary Succession, Property Agreement, Joint Property, Property Division, Contract Law, Marriage Law, Divorce Disputes Divorce Agreement Divorce Case Litigation Representation Civil Dispute Hiring a Lawyer Contract Dispute Contract Review Contract Formation ......