News

Recently, JIA LAWYER BIHUABO successfully represented a third party in a property gift case within the marriage. This case is very special, the gift of money neither 1314, 520 and other symbolic meaning of sensitive numbers, but also did not occur at the time of the festival, and the gift time from the time of the case is very far, nearly 20 years. The first trial has been fully defeated, had been peers as “no hope of reversal”. In this case, want to the second trial reversal, the difficulty can be imagined. But after Bi lawyer “fine, classic” evidence reinforcement and interpretation of the law, and eventually won the second trial directly to the third party to return the full amount of the money won a complete victory.

1 case origin: an express tear open 20 years of hidden

Ms. Han, Mr. Wu (both pseudonyms) two people for the couple, married in 1984. After marriage has been good feelings, there is no problem, the family is also very happy, can be said to be a model couple.

2022 a courier let Ms. Han got suspicious. It was an express delivery of Mr. Wu's insurance policy, and the mailing address was not the address of Ms. Han and Mr. Wu's home, but another unknown home address. This aroused Ms. Han's alarm, because the family's finances are managed by her, if there is the purchase of insurance she must know, but this one she did not know. She then traced the clues, and found that the insurance policy was purchased in the late 1990s, the account money was Mr. Wu's female classmates unauthorized withdrawals, but also other bank transfers related records surfaced. Ms. Han grief and indignation, years of silent dedication in marriage, but in exchange for her husband's betrayal, privately will be a huge amount of money to female classmates, and she was unaware of it, has been kept in the dark. Ms. Han contact with Mr. Wu female classmates, the other party does not recognize anything, has been making up nonsense still want to continue to hide. Under the helplessness of Ms. Han, resolutely decided to resort to the law, in order to defend their legitimate rights and interests, to get back their legitimate property.

2 first trial “sure win” into ‘fiasco’

Ms. Han decided to file a lawsuit, also commissioned a well-known law firm lawyers to help themselves to collect and organize the materials, they also collected Mr. Wu wrote the “confession”, transfer records (which is not lacking in Mr. Wu's female classmates directly to withdraw money), Mr. Wu and his female classmates to collect the records. Mr. Wu's female classmates directly withdrew money from the records), Mr. Wu and female classmates call records (although the records did not directly admit the improper relationship, but there are also very unusual statement content can be anyway improper relationship). Ms. Han thought that with this evidence, the court will certainly be able to support their own claims, they did not appear in court.

When the court, the other party appeared in court, and defense that the money received by Mr. Wu is labor, agency fees, commission fees and other costs, is just and reasonable remuneration.

The court of first instance that Ms. Han and Mr. Wu claimed that the gift of property evidence is insufficient, and the two sides also have other economic disputes, so rejected all of Ms. Han and Mr. Wu's litigation requests.

Such a verdict made Ms. Han angry and alarmed. She was cheated by her husband for decades, the money was taken by the mistress, she also found very favorable evidence, but lost the case, which side of the law?

3 the second trial reversal, the court directly changed the full amount of return

in the anxious and angry, Ms. Han found the Beijing Jiawei Law Firm Bi Huabao lawyers, Mr. Bi did a detailed and thorough analysis of Ms. Han, and help Ms. Han won the second trial, and get back their legitimate property.

(A) pointed out serious deficiencies

With many years of experience as a lawyer and keen judgment, Mr. Bi pointed out that Ms. Han's side did have deficiencies in the process of the first trial, and there were three major loopholes:

1. did not appear in court

itself is reasonable, but did not appear in court to confront the judge, did not give the judge sufficient backbone and inner confirmation. 2. insufficient evidence, the gift of money, the money is not enough to prove.

2. Insufficient evidence

The time of the gift of money is nearly 20 years from the time of the crime, it is difficult to prove the improper relationship; also because of the long time, the gift of money and the lack of sensitive figures, it is difficult to prove the fact of the gift.

3. The most important point: misplaced focus! Failure to break down the other side of the defense and evidence

In the case of requesting the third party to return the gifted property, very few third parties directly agree to return, such cases basically do not reach the court. To the court case, often the other party does not agree to return, but also justified, the other party often put forward the defense is the money is legitimate income, more common is the remuneration for labor, and may also be prepared quite sufficient evidence.

Many of the original spouse tends to focus on the improper relationship, that as long as the proof of the improper relationship, everything will be fine, inevitably returned. Because the illicit relationship is what hurt them the most, it is understandable that proving it takes the anger out of them.

However, this is precisely the focus is misplaced. In the previous Bi lawyer on behalf of a famous CCTV host v. Third party return property case, Bi lawyer summarized, in this type of case, the focus is not to prove the improper relationship (of course, can prove better, but not the focus), but to explain or prove the other party on the irrationality of the remuneration for labor, if you can do this, the case won a big half. Because this kind of case damage is the husband and wife common property rights, even if there is no improper relationship, will be a large amount of money unauthorized gift to a third party, the gift of the disposition should be invalid, invalid consequences is the return of property. So can clarify or prove that the other party to obtain income is not legitimate, the other side of the defense is not established, income is not legitimate, and then moderate proof of improper relationship and the nature of the gift, the case can be won.

In this case, Ms. Han, however, precisely ignored this point. Not on the other side of the content of the defense of remuneration for labor, did not expose the other side of the facts and evidence of forgery, so that the other side of the loophole, so that the judge thought that the two sides do have economic disputes and remuneration for labor matters, and thus rejected the lawsuit request.

To summarize, it failed to lock in the core elements of “improper relationship + gratuitous gift”.

(ii) proposed strong improvement

For the above problems and loopholes, Ms. Bi suggested and helped Ms. Han and Mr. Wu to do the following effective and powerful work, on the one hand, to strengthen the proof of improper relationship, on the other hand, focusing on the other side to refute the other side of the defense of remuneration for labor:

1. The second trial must be in the court

husband and wife to appear in the court, and the other side of the confrontation, to say the facts of the relationship, so that the judge to form an intuitive evidence.

2. Extensive collection of supplementary evidence

(1) Supplementary evidence that can prove the improper relationship. Ms. Han, Mr. Wu eventually found some of the other party's private photos, proving that Mr. Wu and the other party had an extramarital affair.

(2) Supplemental evidence that the other party held Mr. Wu's bank account for a long time. The other party held Mr. Wu's insurance policy and bankbook for a long time and personally withdrew money to his account with the bankbook and password. Such evidence proved both the existence of the illicit relationship and the impropriety of withdrawing the money, i.e., the claim of remuneration for labor was not valid.

(3) Supplementary evidence that Mr. Wu has retired. Supplementary Mr. Wu in the other party to obtain remuneration for services during the unit has been retired from the evidence that Mr. Wu was retired, they are not working, it is not possible to employ the other party in the name of the unit or in their own name to provide services to their original unit. Even if there is the other side for the unit to provide labor services should also be its labor disputes with the unit, and Mr. Wu personal economic disputes do not exist labor, the money from Mr. Wu for labor remuneration defense is completely untenable, should be improper gift of money.

(4) Supplementary Mr. Wu then co-workers witness testimony. Prove that his colleagues are responsible for specific business units, and his colleagues have never seen the other party, not to mention the other party for their units have provided labor, and appear in court with the other party, confirm the other party's so-called Mr. Wu's units to provide labor and labor remuneration for the relevant facts and prove that it is fictitious.

3. Pointing out the other party's labor remuneration claim of other irrationality

In addition to the above additional evidence and reasoning, it is also necessary to point out that although the amount of money transferred does not have a sensitive figure, but the amount and time of the transfer and the other party's defense of labor remuneration at the time and the amount of the serious discrepancies, so that the judge of the other side of the labor remuneration claim reasonable doubt, to negate the defense of labor remuneration.

4. Revealing the contradictory nature of the other party's other defenses

For example, on the one hand, the other party stated that Mr. Wu still owed him money, but on the other hand, the other party had never claimed or sued for up to twenty years, and at the same time, when Mr. Wu asked for the return of the insurance policy passbook (which contained the balance), the other party returned it directly without objection, which was not in line with the common sense of the law

(C) the interpretation of the law reasoning victory

from the fact that, through the above additional evidence, strict reasoning, the core is not only proved the existence of improper relationship between Mr. Wu and the other side of the facts and take the improper nature of the money, and at the same time successfully broke the other side on the money for the remuneration for labor improper rhetoric. Between one positive and one negative to form a tight logical system, proving that the other party to get the money is Mr. Wu based on the need to maintain the improper relationship and the gift to the money rather than the existence of a labor relationship between the two parties should be paid remuneration for labor services.

From the legal point of view, the behavior violates the “civil code of the People's Republic of China” article 1,062 on the husband and wife have equal rights to deal with common property, not for daily life and unauthorized disposal of common property is invalid, and the gift of the junior violates the “civil code of the People's Republic of China” article 8 of the principle of public order and good morals is also invalid, invalid consequences is the restitution of the original state, the return of the property. According to the provisions of Article 301 and Article 311 of the Civil Code of the People's Republic of China, the other spouse has the right to recover, and in full.

This interpretation of the law reasoning successfully persuaded the court of second instance from the initial conversation to the decision to hold a hearing, and finally directly change the judgment to support Ms. Han, Mr. Wu's full claims, the other party to return all the money (except for a small amount of cash because of the time is really no evidence to prove).

4 Conclusion

This judgment once again recognized the illegality of the gift of money to the mistress of the law, maintaining good socialist morals and order, but also let Ms. Han really feel the fairness and justice. On the other hand, it can also show that the legal net is wide open. But the realization of fairness and justice can not be separated from the efforts of a responsible and dedicated lawyer, without the high level of the judge's fair justice, to such a lawyer and judge to pay tribute!