Author: Wu Xiaofang December 28, 2016

Abstract: This article focuses on the actual situation of the judicial interpretation (III) of the Marriage Law of the Supreme People's Court over the past two years, including the handling of the purchase of a house by parents for their children after marriage, the issue of property gifts between spouses, marital debt disputes, the effectiveness of one party's unauthorized gift of common property to others, the revocation of the provision on property gifts to children in divorce agreements, and loan disputes between spouses The issue of postmarital fruits of one party's personal property was discussed.

Keywords: Difficulties in Marriage and Family, Property Gifts

The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (III) (hereinafter referred to as the "Judicial Interpretation of the Marriage Law" (III)), which came into effect on August 13, 2011, has been in effect for over two years now. When it was first introduced, it caused intense controversy and almost reached the level of nationwide discussion. After careful consideration, it was found that many controversial issues stem from different interpretations of the interpretation provisions. This article aims to sort out and explore some difficult issues in the application of the Judicial Interpretation of Marriage Law (III), in order to benefit the trial practice of marriage and family cases.

1、 On the Handling of Parents' Contributions to Purchase a House for Their Children after Marriage

After the promulgation of the Judicial Interpretation of the Marriage Law (III), there has been the greatest controversy over Article 7, with some calling it "illegal" and others believing that it is extremely detrimental to protecting women's rights and interests. The reason for this is that many people include the situation where parents partially contribute to the purchase of a house for their children after marriage in the scope of Article 7. In fact, from the content of Article 7, we can understand it literally and grammatically. "After marriage, one parent invests to purchase for their children" is a modification of the later "immovable property", which is an attribute that emphasizes immovable property. The subject matter of the gift is immovable property rather than investment. Article 7 does not have the term "repay the loan with the joint property of the couple after marriage" or "partially contribute with the joint property of the couple after marriage". The prerequisite for the application of Article 7, paragraph 1, is: firstly, if one parent fully contributes and the property rights are registered in the name of the investor's child; Secondly, the purpose of purchasing real estate is "for the children", not for the parents themselves. In real life, some parents may register the real estate purchased by their parents themselves in their children's names due to reasons such as their children's unit being able to reimburse related property and heating fees, or considering potential issues such as inheritance tax in the future, without actually expressing the intention to give it to their children. Parents purchase houses in the name of their children and register property rights in their children's names, but in reality, it is their own property and there is no real intention of giving as a gift. In judicial practice, a distinction should be made between the actual situation of "gift" and "nominal". Otherwise, the registration of nominal names during divorce may lead to property rights disputes between parents and children, which is highly likely to harm the vital interests of parents.

The focus of Article 7 of the Judicial Interpretation of the Marriage Law (III) is whether the house should be considered as a gift only to one's own children or to both spouses when relevant evidence determines that the parents' contribution to the purchase of a house is a gift behavior? The essence is how to interpret Article 18 (3) of the Marriage Law, which stipulates that "the property determined in a will or gift contract to belong only to the husband or wife", and the term "determination" is the key to interpretation.

The behavior of parents investing in buying a house for their married children is relatively common nowadays. Many parents invest their lifetime savings to buy a house when their children get married, and some even borrow from family and friends to advance their future pension expenses. According to the usual psychology and habits of Chinese people, when giving property to married children, they do not want to use a blunt "clear intention" to determine that it is only given to their own children, which may cause displeasure to their daughter-in-law or son-in-law. They are also worried that half of the property will be taken away when their children's marriage breaks down. Many parents use the "implicit" method of registering property rights in their children's names to express the intention of giving only to their own children, How to determine the ownership of the property during divorce without signing a written agreement specifying the recipient of the gift involves fundamental legal issues. The law fundamentally does not protect gains for nothing. Faced with the current "crazy" housing prices, many elderly people find it unacceptable to lose half of their property due to their children's divorce. So, in judicial practice, there have been various chaotic phenomena such as forging debts, false lawsuits, and even funding parents to sign gift contracts with their own children. Essentially, the funding parents want to keep the property they have saved up to buy when their children's marriage relationship dissolves. Originally, parents investing in buying a house for their children may have considered future elderly care issues. The newly revised "Law on the Protection of the Rights and Interests of the Elderly" stipulates that "the spouse of the caregiver should assist the caregiver in fulfilling their maintenance obligations". However, after divorce, the spouse of the child no longer has this "assistance" obligation, but in the divorce lawsuit, they request that the property be divided as the joint property of the couple. If the property purchased by parents for their children after marriage is widely recognized as joint property of the couple, disregarding the facts, it is clearly contrary to the principle of fairness in the law. The real estate ownership certificate is a proof that the owner enjoys the property rights of the real estate, and the behavior of registering the property rights in the name of their own children is the most convincing way to show their attitude. Especially from the perspective of protecting the legitimate rights and interests of the elderly, this provision has a certain restraining effect on the behavior of one spouse of a child attempting to obtain large amounts of property through marriage.

The viewpoint opposing Article 7 of the Judicial Interpretation of the Marriage Law (III) holds that the foundation of the marital property system in China's Marriage Law is the joint ownership of marital income, which refers to the property obtained by one or both parties during the existence of the marriage relationship, which belongs to the joint ownership of both parties, except as otherwise provided by law. Article 7 of the Judicial Interpretation of the Marriage Law (III) overturns the statutory system of joint ownership of marital property, which is an ultra vires interpretation that violates legal provisions. In fact, this viewpoint is a misunderstanding of the spirit of the Marriage Law. Article 13 of the Marriage Law promulgated in 1980 in China stipulates: "The property obtained by a couple during the existence of their marital relationship shall be jointly owned by the couple, unless otherwise agreed by both parties." That is to say, unless otherwise agreed by the couple, the property obtained after marriage is generally recognized as joint property of the couple. The revised Marriage Law in 2001 did not provide for a general provision that all postmarital income belongs to joint ownership, correcting the long-standing practice in China of indiscriminately treating postmarital property as joint property of spouses. It clearly lists the scope of the joint property of the husband and wife and the personal property of one party. The premarital property of one party, the medical expenses and disability living allowances obtained by one party due to physical injury, the property determined in the will or gift contract to belong only to the husband or wife, and the exclusive daily necessities of one party are all included in the scope of one party's personal property. The basis of Article 7 of the Judicial Interpretation of the Marriage Law (III) is precisely Article 18 (3) of the Marriage Law, which states that "the property determined in a will or gift contract to belong only to the husband or wife" is illegal?

There are also views that the provisions of Article 7 of the Judicial Interpretation of the Marriage Law (III) and Article 22 of the Judicial Interpretation of the Marriage Law (II) are contradictory and confusing. In fact, the provisions of Article 7 of the Judicial Interpretation of the Marriage Law (III) and Article 22 of the Judicial Interpretation of the Marriage Law (II) are not in conflict, and are stipulated separately from different legal levels. Article 22 of the Judicial Interpretation of the Marriage Law (II) stipulates: "Before the marriage of the parties, if the parents contribute to the purchase of a house for both parties, the contribution shall be recognized as a personal gift to their own children, except for those explicitly expressed by the parents as gifts to both parties; after the marriage of the parties, if the parents contribute to the purchase of a house for both parties, the contribution shall be recognized as a gift to both parties, except for those explicitly expressed by the parents as gifts to one party, The term 'should be recognized as a gift' in this article refers to the recognition of a gift from the perspective of social norms when the parents' actual intention to contribute is unclear. This is based on the fact that the probability of parents lending money to their children to buy a house is much lower than the probability of parents donating money to their children to buy a house. If the parties involved have evidence to prove that the parents' contribution to the purchase of a house by their children is a loan relationship, it should be handled according to the loan relationship.

The purpose of Article 7 of the Judicial Interpretation of the Marriage Law (III) is to determine the ownership of the real estate purchased by one parent's investment, while Article 22 of the Judicial Interpretation of the Marriage Law (II) emphasizes how to handle the issue of parents' investment in buying a house for their children. Its purpose is different and cannot draw contradictory conclusions from these two points. The former is a further refinement and reinforcement of the latter, which increases the conditions for real estate registration and is combined with the publicity of property rights. In real life, the situations where parents contribute to buying a house for their children are complex and diverse, and the provisions of judicial interpretation only provide a basic rule of judgment, which is unlikely to exhaust various situations. If the real estate ownership certificate is not obtained at the time of divorce and there is no clear evidence of gift to one party, the contribution of parents to purchase a house for their children after marriage should be considered as a gift to both spouses.

If one parent contributes, but the property rights are registered in the name of the other party, according to daily rules of thumb, unless the parties can provide a written agreement or statement at the time of the parents' contribution to prove that the parents have clearly expressed their intention to donate to the spouse of their children, it should generally be considered as a gift to both spouses; Of course, if one parent contributes to the purchase of a house for their children after marriage and the property rights are registered in the names of both spouses, the house should be recognized as joint property of the couple.

If the parents only pay a portion of the house price, and the remaining payments are jointly paid by the couple, the contributing parents cannot obtain ownership of the house, and therefore cannot decide to give the house to their children and register it in their own children's names. When parents make partial contributions, they can generally only decide which party their contribution shares will be donated to. Considering that the property rights are registered in the name of the investor's own children, it is more reasonable and legal to recognize the parents' contribution as a gift only to their own children.

From the perspective of debt bearing methods, when the parties purchase a house after marriage and apply for a mortgage loan, the bank usually requires both parties to sign on site, and the couple will jointly bear the bank's debts. Since the debt is jointly and severally borne by both spouses, according to the principle of consistent rights and obligations, the property rights of the house should also be jointly enjoyed by both spouses. Since the property rights of the house belong to both the husband and wife jointly, the value-added income should also belong to the property owner, that is, both the husband and wife jointly own it.

In summary, Article 7 of the Judicial Interpretation of the Marriage Law (III) is only limited to cases where parents purchase immovable property for their children in full after marriage. For cases where parents make partial contributions that are not within the scope of application of this Article, if the property rights are registered in the name of the contributor's children, in accordance with the spirit of Article 18 (3) of the Marriage Law, such partial contributions can be considered as gifts to only one of their own children. If there is no prior agreement between the two parties regarding the ownership of the property, the property rights and value-added benefits of the purchased property shall belong to both parties jointly.

When dividing the joint property of a couple, recognizing the nature of the disputed property as jointly owned by both parties does not mean that it can be mechanically divided in half. According to the spirit of Article 39 of the Marriage Law, judgments should be made based on the "specific circumstances of property" and in accordance with the principle of taking care of the rights and interests of children and the woman. That is to say, when dividing the common property of a couple, it is necessary to fully consider factors such as the source of funds for the property, the length of marriage between the two parties, and the contribution of the couple to the family, in order to avoid situations that are significantly unfair. If one parent partially contributes to the purchase of a house for their children, the child of the contributing parent may be given an appropriate extra share during the divorce division. As for how to determine the amount of the extra share, the judge should make a fair and reasonable judgment based on the specific situation of the case.

2、 On the handling of property gifts between spouses

Article 6 of the Judicial Interpretation of the Marriage Law (III) provides an answer to the issue of how to handle the case where a couple, prior to marriage or during the duration of their marital relationship, agreed to donate their personal property to the other party or jointly own it with the other party, but did not complete the property transfer procedures. However, there is still controversy in the academic community. Due to Article 19 of the current Marriage Law, which stipulates: "The agreement between the husband and wife regarding the property obtained during the existence of the marriage relationship and the premarital property shall be binding on both parties." Some views believe that since the agreement between the husband and wife is legally binding on both parties, the agreement between the husband and wife regarding the gift of property does not involve the issue of a third party. As long as the intention is expressed truthfully and there is no fraud or coercion, it should be deemed effective, Fulfilling the registration procedures for house changes is not a necessary condition, and if the donating party requests the revocation of the gift, the people's court should not support it. In judicial practice, when a couple agrees to jointly own or share the property owned by one party, in accordance with Article 19 of the Marriage Law, some courts consider this agreement binding on both parties and order them to continue to fulfill the relevant gift agreement; If the husband and wife agree to give all the property owned by one party to the other party, and due to the failure to complete the registration procedures for house change, according to the provisions of the Property Law, the ownership of the house has not yet been transferred. However, according to the provisions of the Donation section of the Contract Law, the party who gives the property can revoke the gift. Some people ask: Why can't 99% of the property given as a gift be revoked, while 100% of the gift can be revoked?

In fact, the key point of this question is: Is the property donation behavior between couples handled according to the provisions of the Contract Law or Article 19 of the Marriage Law? I personally believe that regardless of the proportion of property that one party agrees to give to the other, it is a valid agreement between the couple. But the question is whether this valid gift agreement can be revoked? There is a lack of corresponding provisions in the current Marriage Law. The subject matter of gifts between spouses includes movable and immovable property, and the Contract Law provides detailed provisions on the issue of gifts, such as: "The donor may revoke the gift before the transfer of rights to the gift property"; If the donated property requires registration and other procedures in accordance with the law, relevant procedures should be completed; If a gift contract or a notarized gift contract with the nature of social welfare and moral obligations such as disaster relief and poverty alleviation does not deliver the gift property, the recipient may demand delivery. Agreements in the field of marriage and family often involve provisions on property ownership, and the formation, effectiveness, revocation, and modification of such agreements do not exclude the application of the Contract Law. In practical life, gifts often occur between individuals with intimate or blood relationships, and the provisions of the Contract Law on gifts do not specify the exception of marital relationships. If one party donates immovable property to the other party or agrees to have it jointly with the husband and wife, it can be completely revoked in accordance with Article 186 of the Contract Law before the change registration is processed, which is not contradictory to the provisions of the Marriage Law.

It should be pointed out that Article 6 of the Judicial Interpretation of the Marriage Law (III) focuses on clarifying that property gifts between spouses can be handled in accordance with Article 186 of the Contract Law; If the donated property has been registered for transfer, but one party of the donated couple fails to fulfill their obligation to support the other party, seriously infringes on the donor or the donor's close relatives, or fails to fulfill the obligations stipulated in the gift contract, the donor may exercise the statutory revocation right in accordance with Article 192 of the Contract Law. The basis for exercising the right of arbitrary revocation is Article 186 of the Contract Law, provided that the property rights of the donated property have not been transferred and do not apply to gift contracts with social public welfare and moral obligations, as well as notarized gift contracts; The statutory right to revoke a gift is a right exercised by the donor based on statutory reasons, and is based on Article 192 of the Contract Law.

3、 On the Revocation of the Property Gift Clause in the Divorce Agreement

When both parties divorced, they agreed to give their jointly owned property to their children, but did not complete the property change registration procedures. One party reneged and requested the revocation of the gifted property clause in the divorce agreement. There have always been two different views on how to handle it in judicial practice.

One view is that the property gift clause in the divorce agreement is integral to the entire divorce agreement and cannot be revoked separately. The act of both men and women disposing of their joint property to their children based on the grounds of divorce can be regarded as a purposeful gift. In the case of the dissolution of their marital relationship due to registration of divorce, the purpose of donating property should be considered to have been achieved, so the terms of donating property cannot be arbitrarily revoked. Another view is that when the marriage registration department handles divorce registration, according to the provisions of the Marriage Registration Regulations, it only requires both parties who voluntarily divorce to make appropriate decisions on children and property issues through consultation, and does not conduct substantive review of the property division agreement. The Contract Law stipulates that gift contracts that have been notarized or have social public welfare and moral obligations such as disaster relief and poverty alleviation cannot be revoked, while gift contracts signed at the marriage registration authority are not legally irrevocable contracts.

Gift behavior generally occurs between relatives or parties with a certain intimate relationship. In marriage and family disputes, issues such as the validity of gift terms should be governed by the provisions of the Contract Law on gifts. Given the basic legal characteristics of the gift contract being single transaction and free of charge, if a minor child receives a property as a gift without paying the consideration, the donor has the right to revoke the gift before the subject property ownership changes.

We believe that when a couple divorces, the agreement will give their jointly owned property to their children. There are generally two situations: one is to register the divorce with the civil affairs department and sign an agreement to give their jointly owned property to their children; The second is to agree to divorce in court, obtain a civil mediation agreement, and voluntarily donate the property to their children.

In the first case, when the parties register a divorce with the civil affairs department, the property gift clause in the divorce agreement is integral to the entire divorce agreement and cannot be unilaterally revoked. Some parties agree to register a divorce after considering various factors, and perhaps the additional condition is to give the property to their children for free. The act of both men and women disposing of their joint property to their children based on the grounds of divorce can be regarded as a gift with agreed divorce conditions. Based on the principle of good faith, the gift cannot be arbitrarily revoked even if the marital relationship between the two parties has been dissolved. Some parties maliciously use the revocation of the gift to achieve the purpose of both divorce and possession of property, which not only causes economic losses and new mental harm to their children or original spouse, but also brings negative effects of dishonesty and benefits to society.

If one party reneges on the gift clause in the divorce agreement and brings a lawsuit before the expiration of the one-year exclusion period after registering the divorce, and after the court accepts the lawsuit and examines it, it is found that there were no cases of fraud, coercion, etc. when entering into the property division agreement, the party's lawsuit request shall be rejected in accordance with the law.

There is a viewpoint that Article 6 of the Judicial Interpretation of the Marriage Law (III) stipulates: "Before marriage or during the existence of a marriage relationship, the parties agree to donate all the property owned by one party to the other party. If the donor revokes the gift before the registration of the change in the gift property, and the other party requests the order to continue to be performed, the people's court may handle it in accordance with Article 186 of the Contract Law." That is to say, in addition to the notarized gift contract, Alternatively, gift contracts with social public welfare and moral obligations such as disaster relief and poverty alleviation cannot be revoked. Generally, gift contracts can be revoked before the transfer of rights to the subject matter. Why cannot the property gifted to children during divorce be revoked when it is also a gift of property? In fact, this simple gift behavior is not the same in nature as the gift behavior at the time of divorce agreement. A gift contract is a contract in which the donor gives their own property to the recipient for free, and the recipient expresses acceptance of the gift. The donor can revoke the gift before the transfer of rights to the gift property. The gift terms involved in the property division agreement reached during the registration of divorce in the civil affairs department are closely related to the dissolution of the marriage relationship. According to Article 8 of the Judicial Interpretation of the Marriage Law (II), "The provisions on property division in the divorce agreement or the agreement reached by the parties due to divorce have legal binding force on both parties." If the parties retract their request to change or revoke the property division agreement, If there is no evidence of fraud or coercion when signing an agreement, it is generally difficult to obtain court support. The characteristic of Article 186 of the Contract Law is the arbitrariness of the revocation right, which means that it can be revoked without any reason before the transfer of the right to the gift. Article 8 of the Judicial Interpretation of the Marriage Law (II) emphasizes the legal binding force of the property division clause in the divorce agreement, which cannot be changed or revoked without authorization. According to the principle that special law is superior to general law, the legal binding force of the gift clause in the divorce agreement should be used to counteract the arbitrariness of the right to arbitrary revocation. This type of dispute should have priority in applying the provisions of the Judicial Interpretation of Marriage Law (II).

In the second case, if the gift agreement reached by the parties is reviewed and confirmed by the people's court before being made into a civil mediation agreement, once the mediation agreement takes effect, it will be given the same compulsory effect as the judgment, and its effectiveness should be equal to or higher than the notarized gift contract, and both parties must fulfill it. From the provisions of the Property Law, it can also be seen that "if the establishment, change, transfer, or extinction of property rights is caused by legal documents of the people's court, arbitration commission, or expropriation decisions of the people's government, it shall take effect from the effective date of the legal documents or expropriation decisions of the people's government." Therefore, the effectiveness of a property gift confirmed by the court is equivalent to or higher than that of a notarized property gift contract, In principle, it cannot be revoked.

Another procedural issue that needs to be explored is whether the children of the donee in the divorce agreement can file a lawsuit as plaintiffs requesting the fulfillment of the gift terms or apply for compulsory execution in the court? Due to the fact that the children of the donee are neither the rights holders in the divorce agreement nor the recipients of civil obligations, they are only the objects of civil rights, namely the beneficiaries of the gift terms in the divorce agreement, and they are not eligible to sue as plaintiffs; For cases where the parties to a divorce reach an agreement to receive a mediation agreement under the auspices of the court, according to Article 236 of the Civil Procedure Law: "The parties must fulfill the mediation agreement and other legal documents that should be executed by the people's court. If one party refuses to fulfill, the other party can apply to the people's court for enforcement." As the recipient's child is obviously not the "other party" and has no right to apply to the court for enforcement.

4、 How to handle the income generated from one party's personal property after marriage

From the current content of the Marriage Law, there is a lack of regulations regarding the income generated by one spouse's personal property after marriage. Income generally includes production and operation income, investment income, intellectual property income, fruits, natural appreciation, etc. The Marriage Law itself specifies that the income from production and operation and intellectual property income belong to the joint ownership of the couple, while the Judicial Interpretation of the Marriage Law (II) specifies that the income obtained by one party from personal property investment belongs to "other property that should belong to the joint ownership", The Judicial Interpretation of Marriage Law (III) clarifies the personal property attributes of fruits and natural appreciation.

The concept of "fruits" is not stipulated in Chinese law, and scholars have different interpretations of what "fruits" are, ranging from broad to narrow. Many scholars understand the concept of "fruits" in a broad sense, so they have objections to Article 5 of the Judicial Interpretation of Marriage Law (III), believing that it is not conducive to protecting the rights and interests of the disadvantaged party in marriage. We believe that the term "fruits" in Article 5 of the Judicial Interpretation of the Marriage Law (III) should be interpreted in a limited manner, specifically referring to non investment and non operational gains. The difference between investment, operating income, and interest income lies in the characteristics of risk, uncertainty, and subjectivity. Taiwanese scholar Huang Li believes that "the dividends obtained from owning company stocks are distributed only when the company has a surplus in operation, and if there is a loss, dividends cannot be distributed. This belongs to the benefits obtained from investment risk and is not a statutory interest

Although housing rent is considered a legal interest in civil law theory, considering that rent is different from bank deposits, and the lessor has maintenance and other obligations towards the house, the acquisition of rent is closely related to the management status of the house itself, requiring a certain amount of management or labor input. Therefore, it is more appropriate to recognize rent as operating income. Especially for situations where one spouse relies on rental income to make a living, it is clearly unfair to recognize the rental income from one spouse's rented property as personal property, while the other spouse's salary and bonus income belong to common property.

The fruit trees in the orchard owned by one party before marriage are jointly worked and managed by both parties after marriage, and the fruits produced by the fruit trees belong to the joint property of the couple. In the French Civil Code, it is referred to as "artificial fruits", mainly referring to fruits obtained through cultivation. From the existing legal provisions in our country, it may be more reasonable and legal to classify "artificial fruits" as productive and operational gains in the Marriage Law.

The natural appreciation of personal property of one spouse during the existence of the marriage relationship refers to the occurrence of such appreciation due to inflation or changes in market conditions, which is not related to the collaborative labor, efforts, or management of one or both spouses. For example, the appreciation of property, antiques, calligraphy and painting, jewelry, gold, etc. owned by one spouse before marriage due to market price increases during the existence of the marriage relationship. The appreciation after sale is based on the increase in the exchange value of the original item and is the result of market behavior that does not transfer according to human will. Therefore, the ownership of the original item should still belong to the individual, and this part of appreciation should be recognized as the personal property of one party.

Generally speaking, value-added includes natural value-added (also known as passive value-added) and active value-added. If the increase in the price of goods or rights is based on human efforts, it should belong to active value-added and should be treated as joint property of the couple in principle. The Judicial Interpretation of the Marriage Law (III) actually divides the appreciation of one party's personal property during the existence of the marriage relationship based on the subjective initiative or objective passive behavior on which the appreciation is based, emphasizing that the natural appreciation of objective passivity belongs to one party's personal property. The reason why the term "active value-added" does not appear in the judicial interpretation provisions mainly considers that the reasons for active value-added include production, operation, or investment behavior, and some concepts are overlapping. Judicial interpretation adopts the method of excluding fruits and natural appreciation, which is convenient for judges to operate and unify their discretion.

It is necessary to distinguish between investing in buying a house or living in a family when one party uses pre marital property to purchase a property after marriage. When using the premarital property for non self occupied investment purposes, the other party has the right to claim its investment income. For example, if one spouse uses their pre marital personal savings to purchase a reverse lease hotel apartment after marriage, they will receive rental income during the period. Although the ownership of the property is personal to one spouse, the investment income belongs to both spouses. Some real estate speculators use their pre marital assets to continuously buy and sell properties after marriage, spending a lot of time and effort. The profits obtained are recognized as joint property of the couple, which is relatively fair.

According to the current relevant provisions of the "National Five Articles", selling a family's only home and having lived for at least 5 years will not be subject to a 20% tax on the transaction price difference. According to the spirit of this regulation, if one party's personal owned house is used for living together after marriage, although there have been N transactions during the marriage relationship, it is still the only house in the family. The value-added part of the house at the time of divorce is considered as personal property, which is more suitable.

5、 Rules for Handling the Unauthorized Donation of Joint Property by One Party of a Husband and Wife to Others

In judicial practice, it is common to encounter disputes where one spouse gives their common property to others without authorization. For example, if a spouse cohabits with others outside of marriage, in order to maintain or terminate this cohabitation relationship, they give their common property to others without their spouse's knowledge. In practice, there are different approaches to how to handle disputes and bring them to court. We believe that Article 3 of the current Marriage Law stipulates that "cohabitation with others is prohibited". If one spouse cohabits with other members of the opposite sex outside of marriage, their behavior violates the prohibitive provisions of the Marriage Law. This cohabitation relationship is illegal and not protected by law.

The joint property of husband and wife is based on legal provisions and arises from the existence of the marital relationship. In the absence of any other property system chosen by both spouses, the couple forms a joint ownership of their common property, rather than a joint ownership by shares. According to the general principle of common ownership, during the existence of a marital relationship, the joint property of the husband and wife should be treated as an indivisible whole, and the husband and wife should jointly enjoy ownership of all the joint property without any share. Both parties cannot divide personal shares of the joint property, and they have no right to request the division of the joint property during the period of common ownership without significant reasons. The equal right of spouses to dispose of common property does not mean that each spouse has half of the right to dispose of common property. Only when the joint ownership relationship terminates can the joint property be divided and their respective shares be determined. Therefore, the act of one spouse donating their common property to others without authorization should be considered completely invalid, not partially invalid.

The German Civil Code clearly stipulates that "one spouse shall not dispose of their due portion in the common property and their due portion in the various objects belonging to the common property"; The Swiss Civil Code also stipulates that "no spouse shall dispose of their rightful share of common property"; The Uniform Marital Property Act of the United States stipulates that when a spouse exercises the right to manage or dispose of marital property, the cumulative amount of gifts given to a third party with marital property within one year shall not exceed $500, or the amount given is reasonable and appropriate based on the spouse's financial ability, unless both spouses jointly give to a third party, and any other gifts exceeding this amount must be jointly given by both spouses. Otherwise, the other spouse has the right to initiate an action to return the original property or restore the property to its original state, and demand compensation for damages. The spouse may sue the spouse exercising the gift, the recipient, or both parties.

Although China's Marriage Law lacks clear and targeted provisions as mentioned above, Article 17 of the Judicial Interpretation of the Marriage Law (1) stipulates that Article 17 of the Marriage Law stipulates that "the husband or wife shall have equal rights to handle property jointly owned by the husband and wife", It should be understood as: "(1) The rights of the husband or wife in handling the joint property of the husband and wife are equal, and if the handling of the joint property of the husband and wife is necessary for daily life, either party has the right to decide. (2) If a husband or wife makes important decisions regarding the joint property of the couple not due to daily life needs, both parties should negotiate equally and reach a consensus. If the other party has reason to believe that it is a joint expression of intent between the husband and wife, the other party shall not use disagreement or lack of knowledge as a reason to confront a bona fide third party

If the disposal of the joint property of the husband and wife exceeds the needs of daily life, both parties should reach a consensus through consultation. If one party alone donates a large amount of the joint property of the husband and wife to others, it is also an act of unauthorized disposal. In the absence of prior knowledge or subsequent recognition by the other party of the couple, in accordance with the spirit of Article 51 of the Contract Law, unless the right holder recognizes or disposes of the person and obtains the right to dispose, the disciplinary action shall be invalid; Article 106 of the Property Law also stipulates: "If a person without the right to dispose of immovable or movable property transfers it to the transferee, the owner has the right to recover it." When the property is taken over by others without legal basis, the owner has the right to demand the illegal possessor to return the property based on the effectiveness of the property rights. The injured party in the couple can exercise the right to claim in rem, and the spouse and cohabitant outside of marriage are the joint defendants, requesting the court to order them to return the property.

When it comes to specific handling issues, such as whether one spouse donates property to an extramarital partner, should they return the property or the corresponding purchase price. We believe that there are generally two situations: if the donor gives money to the recipient to purchase a house, car, etc. and is registered in the recipient's name, and the gift is confirmed to be invalid, the recipient should return the corresponding money; if the donor changes the registration of the house, vehicle, etc. originally registered in their own name as the recipient, the recipient should return the restored house, vehicle, etc.

There is a viewpoint that in real life, it is not uncommon for one party to be "mistressed" without knowing that the other party has a spouse. This situation should be treated differently and the interests of the "mistress" party should also be protected. We do not agree with this viewpoint. In judicial practice, it is relatively difficult to determine whether one party belongs to the fact of being a "third party". In addition, emotional issues are not commercial behavior, and there may not always be gains if there is effort. In cases where both parties are adults, they should clearly anticipate the legal consequences of their actions.

Someone has raised the question, is it a case of "transferring joint property between husband and wife" in Article 4 of the Interpretation of the Marriage Law (III), that one spouse gives a large amount of property to an extramarital partner without authorization? From the interpretation of the dictionary, the term 'transfer' refers to a change of position, moving from one party to another; In addition, there is a meaning of 'change'. We believe that the act of one party giving a large amount of joint property to an extramarital partner without authorization overlaps with the concept of "transferring" the joint property of the couple, and should be recognized as belonging to Article 4 of the Judicial Interpretation of the Marriage Law (III), which constitutes a "major reason" for dividing the joint property of the couple. The other party may request the division of the joint property of the couple during the existence of the marriage relationship.

6、 On the issue of marital debt

In divorce proceedings, it is common for one party to hold a valid civil judgment or mediation agreement in a debt dispute case, claiming that the debt is a joint debt of the couple, while the other party claims that the debt is forged or personal debt of the debtor. If one party's personal debt during the existence of a marriage relationship is simply presumed to be a joint debt of the couple, it will lead to some parties maliciously forging debts, making the marriage full of risks. Therefore, when trying divorce cases, attention should be paid to the allocation of the burden of proof, that is, the debtor should prove that the debt is based on the agreement of the couple or used for their common life and business.

According to Article 24 of the Judicial Interpretation of the Marriage Law (II), in debt disputes, if a creditor claims rights over the debts incurred by one spouse in their personal name during the marriage relationship, they shall be treated as joint debts of the couple. There are only two exceptions, namely the husband and wife implementing a separate property system or explicitly agreeing with creditors as personal debts. In practical life, these two exceptions are rare, resulting in the vast majority of debts being recognized as joint debts of the couple in cases filed by creditors. In fact, some are gambling debts borrowed by one spouse or debts forged in collusion with creditors. We believe that the issue of marital debt is indeed quite complex and cannot be simply cut across. The background of the introduction of the "Judicial Interpretation of Marriage Law" (II) at the end of 2003 is that in many cases, both spouses maliciously colluded to evade debts, greatly damaging the interests of creditors. However, after a period of application of the Judicial Interpretation of the Marriage Law (II), there have been cases in judicial practice where one spouse who raises debt maliciously colludes with creditors to damage the rights and interests of the other party. The key to the problem is how to grasp the scale and balance the protection of the interests of creditors and the non debtor party in the couple.

In theory, couples enjoy the power of family agency. Within the scope of family agency, one party's external borrowing should be considered as a joint debt of both parties. To determine whether the debt raised by one party beyond the daily needs of the family belongs to the joint debt of the couple, the legislative intention of the Marriage Law should be analyzed. One is whether the couple has a common intention to borrow money. If the debt is expressed by both parties, regardless of whether the benefits brought by the debt are shared by the couple, the debt should be considered as a joint debt of the couple; The second is whether the debt is used for living and operating together with the couple. In real life, most private lending is based on credit, where creditors trust the debtor's own ability to repay, rather than trusting the debtor's spouse to have the ability to repay. There is a viewpoint that inferring all debts incurred by one spouse during the marriage relationship as joint debts not only violates the principle of relativity of debts in civil law, but more seriously, this presumption excessively protects the interests of creditors and almost relieves them of all the duty of caution and attention when concluding debts. According to the principle of privity of contract, the validity of the contract only applies to both parties and does not bind anyone other than the contract, even if they are the spouse of the contractual obligor. Creditors should not only be responsible for their signing behavior, but also bear the risks arising from the transaction.

After the implementation of the Judicial Interpretation of the Marriage Law (II), many scholars and practitioners have questioned the provisions of Article 24 of the interpretation, believing that it excessively protects the interests of creditors and makes the marriage full of risks. An uninformed spouse may bear the debts of a generation for a marriage. In real life, due to debts such as gambling, credit card cashing, and high interest loans by one spouse, the innocent spouse has put in a lot of effort to repay their debts. This judicial interpretation only emphasizes the formal requirement of whether there is a clear agreement in the contract as personal debt, and in practice, it cannot be ruled out that the debt of the contracting party is indeed not the substantive content of marriage and common life, so it is inevitable that the property rights of non contracting parties will be damaged. [2] In the process of drafting the Judicial Interpretation of Marriage Law (III), We have also considered revising Article 24 of the Judicial Interpretation of the Marriage Law (II) to a certain extent, but it was ultimately shelved due to the excessive controversy.

Carefully read Article 19 of the Marriage Law, which states: "If a husband and wife agree that the property acquired during the existence of their marriage relationship belongs to each other, and if a third party knows about the agreement, the property owned by the husband or wife shall be used to settle the debt incurred by either party." From another perspective, what if the third party is not aware of the agreement? Is it possible to settle the joint property of the husband and wife? The author found a more authoritative answer from the book of legislators: When a third party has a debt to debt relationship with one of the spouses, if the third party knows that their marital property has been agreed to belong to each other, they shall use their own property to settle the debt. If the third party is not aware of the agreement, the agreement shall not be effective against the third party. The debt owed by one of the spouses to the third party shall be settled according to the principle of settlement under the joint property system of the spouses. Regarding how the third party knows about the agreement, it can be either the husband or the wife Alternatively, both parties may inform that a third party may have been a witness or insider during the marital property agreement. How to determine whether a third party is aware of the agreement? One or both spouses have the burden of proof, and the couple should prove that the third party was indeed aware of the agreement at the time of the debt debt debt relationship. The term 'debt owed by the husband or wife to a third party' in this paragraph refers to the debt incurred by one spouse in their own name with a third party. Whether it is a debt incurred for the joint life of the husband and wife, or a personal debt, regardless of whether it is a debt incurred for the education of their children, a debt incurred by an individual in business operations, or a debt incurred by unauthorized financial support for personal relatives and friends, the provisions of this paragraph shall apply [3] From the structure of the provisions of the Marriage Law itself, Article 19 is stipulated in the chapter on "Family Relations" and Article 41 is stipulated in the chapter on "Divorce". From this, it can be seen that Article 24 of the Judicial Interpretation of the Marriage Law (II) is interpreted in accordance with the spirit of the provisions of the Marriage Law itself, which presumes that the debt borne by one party during the marriage relationship in their personal name is a joint debt of the couple. Only when one party provides evidence to prove the two exceptions can the nature of the joint debt be denied, and the "presumption" standard is applicable. Debt litigation should not naturally follow the "purpose" standard of divorce litigation, because "if the debtor is allowed to transfer or change the joint and several liability of the couple to the outside world through divorce agreements or effective judgments of the people's court, the rights of the creditor may be lost and lost due to changes in the debtor's relationship. This loss of rights not based on one's own fault goes against the principles of fairness and justice. [4]

When dealing with marital debt disputes, there may be three different legal relationships involved: firstly, if the creditor sues the debt dispute between the couple, that is, the external relationship between the couple, the "presumption" standard in Article 24 of the Judicial Interpretation of Marriage Law (II) should be applied; The second is the divorce dispute, which refers to the internal relationship between the couple, and applies the "purpose" standard, that is, whether the borrowed debt is used for the couple's common life; The third is the recovery relationship between husband and wife, which is stipulated in Article 25 of the Judicial Interpretation of the Marriage Law (II): "If one party assumes joint and several liability for debt repayment and seeks compensation from the other party based on the divorce agreement or legal documents of the people's court, the people's court should support it." Of course, if both parties do not claim a certain debt in the divorce lawsuit, and one party believes that they have taken on more responsibility in the debt lawsuit and have a reasonable basis, You can also seek compensation from the other party. Therefore, when trying debt disputes involving different legal relationships, different standards should be applied for judgment. Article 24 of the Judicial Interpretation of the Marriage Law (II) plays an indispensable role in saving judicial costs, facilitating judges' judgments, and effectively protecting the rights of creditors. If we consider adding some exceptions, it may be more advantageous to balance the protection of the property rights of creditors and the spouse who did not borrow. For example, if a creditor claims rights over debts incurred by one spouse in their personal name during the marriage relationship, they should be treated as joint debts of the couple. Except for cases where one spouse can prove that the debt they have incurred has not been used for living together. If the husband raises a debt outside and the wife can prove that the debt is gambling debt, it should be handled according to the husband's personal debt; If the spouse who has not borrowed can prove that the creditor knew or should have known that the debt was not used for family living together, the debtor should bear the responsibility for repayment. This is the case with guaranteed debts encountered in judicial practice. Obviously, the creditor knows that the debt is not used for family living together, and one spouse has no obligation to repay the debt guaranteed by the other party.

In response to the problems that arise in trial practice, courts in various regions are also actively exploring new trial ideas. According to Article 19 of the "Guiding Opinions on Several Issues Concerning the Trial of Private Loan Dispute Cases" issued by the Higher People's Court of Zhejiang Province, during the existence of a marital relationship, debts incurred by one spouse in their personal name due to daily life needs should be recognized as joint debts of the couple. Daily life needs refer to the necessary matters in daily life for both spouses and their underage children living together, including purchasing daily necessities, medical services, children's education, daily cultural consumption, etc. If one spouse incurs debts beyond the scope of daily life needs, they shall be recognized as personal debts, except for the following situations: 1. The lender can prove that the property obtained from the debts is used for the common life and business needs of the family; 2. The other party of the couple subsequently recognizes the debt. If the debt does not belong to the daily needs of the family, the lender can invoke the provisions of Article 49 of the Contract Law on agency by estoppel, requiring the couple to jointly bear the debt repayment responsibility. The lender who invokes the rule of agency by estoppel requiring the couple to jointly bear the responsibility for debt repayment shall bear the burden of proof for the constituent elements of agency by estoppel. For example, Article 3 of the Shanghai Higher People's Court's Several Opinions on the Trial of Disputes over Private Loan Contracts stipulates that if the debt in a loan dispute belongs to the joint debt of the couple or individual debt, the provisions of Article 24 of the Judicial Interpretation of the Marriage Law (II) by the Supreme People's Court should be taken as a basic principle. At the same time, there are two factors that need to be considered: 1. whether the couple has a willingness to jointly raise debt; 2. Is the debt used for living together as a couple. These two factors are exceptions to the basic principles. If one party has sufficient evidence to prove that the couple did not agree to jointly raise debt or that the debt was not used for the couple's common life, then the debt can be recognized as personal debt of either party. We believe that these regulations have certain reference significance for determining the nature of marital debt.

During the existence of the marital relationship, debts incurred by one spouse due to infringement shall be recognized as joint debts of the couple if the infringement is for the benefit of the family or in fact benefits the family, such as debts incurred by taxi drivers who need compensation due to traffic accidents; If it is not for the benefit of the family and the family has not actually benefited, such as injuring others and requiring compensation for infringement of others' reputation rights, it should be recognized as one party's personal debt.

7、 On the issue of borrowing between spouses

Before marriage, one party borrowed money from the other party without an agreed repayment period, and after marriage, both parties lived together for many years. When the lender demands repayment of the loan from the other party during divorce, and the borrower defends it by exceeding the statute of limitations, what should be done? We believe that if one party borrows money from the other party before marriage and there is no agreed repayment deadline, it means that the lender can request a refund of the loan at any time. The conclusion of a marital relationship between the two parties does not lead to the disappearance of the pre marital debt relationship. At the time of divorce, the lender requests the other party to repay the loan, and the other party's claim that the statute of limitations has been exceeded cannot be established.

Article 16 of the Judicial Interpretation of the Marriage Law (III) provides specific provisions on the issue of borrowing between spouses during the existence of marital relationships. Firstly, a legal relationship of borrowing and lending can be established between husband and wife. The agreement between husband and wife stipulates that the joint property of the husband and wife should be lent to one party for personal affairs, which should be regarded as the act of both parties disposing of the joint property of the husband and wife. This agreement is valid and both parties should fulfill it according to the loan agreement. Secondly, loan disputes arising from the lending of joint property between spouses should be handled together in divorce proceedings, which can balance the protection of individual rights of civil subjects and the maintenance of marital relationships. When it comes to the issue of statute of limitations in litigation, as the subject matter of the loan belongs to the joint property of the couple, it is impossible to distinguish the specific amount of each other until the marriage relationship is dissolved. Therefore, the effect of litigation only starts from the time of divorce; If one party lends personal property, even if both parties have a marital relationship, it should be handled in accordance with the provisions of the statute of limitations for litigation. If the lender claims repayment after exceeding the statute of limitations, it is generally not supported.

(Author's unit: Supreme People's Court)

References

[1] Huang Li: "General Principles of Civil Law", China University of Political Science and Law Press, 2002 edition, page 362.

[2] Yang Dawen, editor in chief: "Family Law", Law Press, 2004 edition, page 138.

[3] Hu Kangsheng, editor in chief: "Interpretation of the Marriage Law of the People's Republic of China", Law Press, 2001 edition, page 79.

[4] He Zhi: "Research and Application of Marriage Law Interpretation", People's Court Press, 2004 edition, page 482.