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Recently, JAVY law firm attorneys Gao Feng and Cheng Zhongsheng successfully represented a complex civil loan case. With profound legal knowledge and rich trial experience, the two lawyers successfully secured a judgement for the creditor on the joint debt of husband and wife. This case demonstrated JIA LAWYER's outstanding strength in the field of civil and commercial affairs, and provided reference for similar cases in the future.

01 case background

Li Mou A and Li Mou B is a biological sister, Li Mou B works in a bank, and Huang Mou married in 2009, divorced in 2019. 2018 Wei Mou operating business funds are tight, to Li Mou B to seek a loan, and promised to pay a high interest rate. 2018 Li Mou B lending to Wei Mou through a bank, its own funds, Wei Mou is still insufficient funds, Li Mou B then borrowed money from her sister, Li Mou A. At the instigation of Li Mou B, Li Mou A will own property mortgaged loan two million, and personal name of a number of credit card multiple cash, the above funds delivered to Li Mou B, Li Mou B to Wei Mou. 2019 Li Mou B to Li Mou A issued a loan agreement to confirm that from 2018 to 2019 borrowing a total of two million nine hundred thousand. Thereafter, Li Mou B failed to repay the loan in accordance with the loan agreement, and Li Mou A sued Li Mou B and Wei, the actual user of the loan, together to the People's Court in 2021 (hereinafter referred to as Case No. 18542). The court found that a private loan legal relationship was established between Li Mou A and Li Mou B, and between Li Mou B and Wei Mou respectively, and ruled that Li Mou B was liable for repayment of the loan to Li Mou A. The court ruled that Li Mou B was liable for repayment of the loan. After the judgement came into effect, Li Mou A applied for compulsory execution, and as Li Mou B had no property available for execution, the court ruled to terminate this execution. Li Mou A believed that Li Mou B had transferred the property, and found attorneys Gao Feng and Cheng Zhongsheng to represent him in the revocation claim, and continued to push forward with the enforcement of Li Mou B's lawsuit.

In addition, Huang had sued Wei in 2020 for private lending (hereinafter referred to as Case No. 7796), which was later withdrawn.

02 lawyer analysis

In the face of Li Mou A's legal claim, peak, ChengZhongSheng lawyers for a comprehensive and in-depth analysis: no LiMouB transfer of property specific evidence, can not file a cancellation of the lawsuit; Crack the key to enforcement, one is to find a new property clues, two is to expand the scope of the executor. As the implementation of the court has carried out a comprehensive investigation and control of the property of li mou b, it has no property available for execution, and in li mou a also can't provide other property clues, can only seek to expand the scope of the executor. In view of the fact that Li Mou B and Huang were married in 2009 and divorced in 2019, the debt of the case occurred during the period of existence of the couple, the first consideration is the joint debt of husband and wife.

Joint debt of husband and wife usually refers to the debt incurred by both spouses or one of the spouses during the marriage to maintain the needs of common life or to engage in business activities for the purpose of common life.The Interpretation of the Supreme People's Court on Relevant Issues Concerning the Application of Law to the Trial of Cases Involving Debt Disputes Between Husband and Wife, which came into effect on 18 January 2018, has a clear stipulation on the constituent elements of joint debt of husband and wife: "If one of the spouses incurs a debt in his or her personal name that exceeds the needs of the family's daily life during the marriage, and the creditor asserts his or her right on the grounds that it is a joint debt of the husband and wife, the people's court will not support the claim, unless the creditor is able to prove that the debt is used for the husband and wife's joint life, joint production and operation, or is based on the husband and wife's joint expression of intent. " Article 1064 of the Civil Code contains a similar provision: "Debts incurred with the joint signature of both spouses or with the subsequent acknowledgement of one of the spouses, as well as debts incurred by one of the spouses in his or her personal name for the daily needs of the family during the period of the marriage are joint debts of the husband and the wife. Debts incurred by one of the spouses in his or her personal name during the marriage that exceed the needs of the family in daily life do not belong to the joint debts of the husband and wife; however, unless the creditor is able to prove that the debt is used for the joint life of the husband and wife, for joint production and operation, or based on the joint intention of the husband and wife."

According to the above provisions of the law, just because the debt occurred during the existence of husband and wife, can not be directly identified as husband and wife common debt. The amount involved in this case is large, has exceeded the family's daily needs, the loan agreement without Huang's signature and recognition, Li Mou A need to prove that the funds involved in Li Mou B and Huang's common life, common production and operation or based on the common intention of the two people.

The underlying facts of this case is more complex, involving from the bank loan and then sub-lending (private lending contract is invalid), after the contract is invalid high interest against the principal, credit card cash (credit card fraud criminal risk), enforcement and other legal issues. Although Li Mou A sued Li Mou B, Wei Mou case 18542 has been found part of the facts, but Li Mou A and Li Mou B between the funds frequent exchanges, the time span is large, will be each sum of money are recognised as Li Mou B and Huang Mou husband and wife of the difficulty of the debt can be imagined.

03 Case Representation

Attorneys Gao Feng and Cheng Zhongsheng retrieved case file No. 18542 from the court. According to the trial transcript of the case, defendants Li Mou B and Wei Mou both acknowledged that Wei Mou actually used all of Li Mou A's funds; the public security authorities' interrogation transcript of Li Mou B showed that Li Mou B admitted to charging Wei Mou 30% interest. This constitutes the first step in the determination of the husband and wife debt: Li Mou B will be used for lending Li Mou A's loan business. Li Mou A should also prove that the lending business is Li Mou B and Huang Mou joint behaviour.

Huang sued Wei mou case 7796 trial transcript shows that Huang mou know that the funds from Li mou A, Wei mou claim that Huang mou through the lending behaviour of profit; Li mou B, Huang mou, Wei mou and other people's bank water show that Huang mou depth of participation in Li mou B and Wei mou borrowing and lending behaviour. Thus completing the determination of conjugal debt: LiMouB and HuangMou will LiMouA funds for common lending business, so the funds belong to the two people of conjugal debt.

Considering the difficulty of enforcing the direct addition of Huang as the executor, Gao Feng and Cheng Zhongsheng decided to file a separate lawsuit on the grounds of private lending, claiming that the funds in question were a joint debt of husband and wife, and that Huang should be jointly and severally liable for all the items of the Civil Judgement No. 18,542 (including doubling the interest on the debt during the period of delayed fulfilment).

04 Judgement Result

Summit, Cheng Zhongsheng lawyers represented the case of the first trial, the second trial, with a solid evidence base and rich trial experience, the court adopted all the opinions of the two lawyers, the final judgement, in addition to Li Mou B has been fulfilled, the implementation of the part of the judgement to support all of the litigation request of Li Mou A.

This result not only safeguarded the client's legitimate rights and interests, but also fully demonstrated the two lawyers in dealing with the husband and wife debt typical cases of excellent ability and professionalism, highlighting the JIA LAWYER in dealing with complex civil and commercial disputes has always had a professional advantage and deep heritage. In the future, JAVY law firm will continue to uphold the spirit of professionalism, continue to explore and innovate the mode of legal services, to provide the best quality legal services for each client.