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The nature of debt can be divided into individual debt and joint debt of husband and wife. Before the promulgation of the civil code, according to Article 24 of 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 (II), "if a creditor claims rights on the debt of a husband and wife in their own name during the duration of the marriage relationship, it shall be treated as joint debt of husband and wife." That is, as long as the debt incurred during the duration of the husband and wife relationship can be presumed to be the joint debt of the husband and wife. After the promulgation of the civil code, article 1064 established that the husband and wife debts should be "jointly signed": "the debts incurred by the joint signature of the husband and wife or the subsequent ratification of one of the husband and wife and the debts incurred by one of the husband and wife in his own name for the daily needs of the family during the duration of the marriage relationship belong to the joint debts of the husband and wife." The progress of law has improved the defects of the presumption of marital debt, and made it clear that marital debt should be based on the expression of the common will of husband and wife. Unless the husband and wife jointly raise debts in their names or the creditor can prove that the debts raised by the husband and wife in their names are used for the daily needs of the debtor's family, they will be recognized as personal debts.

The scope of property available for execution of personal debt in the execution procedure includes the debtor's share in the debtor's personal property and the joint property of husband and wife. If the creditor takes both husband and wife as defendants at the time of prosecution, and the court recognizes them as joint debts of husband and wife, the scope of property available for enforcement in the enforcement procedure includes the personal property of both husband and wife and the joint property of husband and wife.

If the creditor only sues the husband and wife at the time of prosecution, and the judge determines that the debt is the personal debt of the husband and wife or does not determine the nature of the debt at the time of trial, after the case enters the enforcement procedure, the applicant for enforcement claims that the debt is the joint debt of the husband and wife and applies for adding the spouse of the person subjected to enforcement as the person subjected to enforcement. Can the executing agency make a judgment on the nature of the debt? After it is judged that it is a joint debt of husband and wife, can the enforcement agency add the spouse of the person subjected to enforcement as the person subjected to enforcement? At present, the judicial practice of courts across the country is slightly different.

The Beijing court shall strictly comply with Article 424 of the Beijing Municipal Court's code of practice for the execution of courts issued by the Beijing High Court and the notice on standardizing the execution in the execution and effectively protecting the property rights and interests of the parties concerned issued by the supreme law. If there is no clear provision that the subject of execution can be changed or the person to be enforced can be added, it shall not be changed or added at will. Adhering to the spirit of Article 2 of the supreme law on the proper trial of cases involving husband and wife debt according to law, which guarantees the litigation rights of the husband and wife who have not borrowed money by name, "without trial procedures, the husband and wife who have not borrowed money shall not be required to bear civil liability", the Beijing court does not recognize the nature of the debt in the enforcement procedures and does not add the spouse as the person to be enforced.

In Article 5 of the answers of the higher people's Court of Jiangsu Province on several difficult issues concerning enforcement, the Jiangsu high court held that if the applicant for enforcement applied for adding the spouse of the person subjected to enforcement as the person subjected to enforcement under the circumstances that the nature of the debt was not determined in the basis of enforcement, the enforcement agency should review it and make a decision on whether to add it. Article 6 stipulates that if the basis for enforcement is identified as personal debt and the debt is formed during the duration of the husband wife relationship, the enforcement agency may, under certain conditions, presume that the debt is a joint debt of the husband and wife and add the spouse of the person subjected to enforcement as the person subjected to enforcement.

In Article 2 of the answers of the Shanghai Higher People's Court on Several Issues concerning the application of law in the case of the enforcement of husband and wife's personal debts and joint debts, the Shanghai High Court also gave the enforcement agency the right to conduct a hearing and review if the applicant for enforcement claims to treat the case as the husband and wife's joint debts of the person subjected to enforcement and applies for adding the spouse of the person subjected to enforcement as the person subjected to enforcement without specifying the nature of the debt on the basis of enforcement, And under certain conditions, it can be recognized as the joint debt of husband and wife, and the ruling will add the spouse of the person subjected to execution as the person subjected to execution.

In Article 1 of the "answers to relevant legal questions on the case of determining one of the husband and wife as the debtor by implementing effective legal instruments", the Zhejiang provincial high court clearly stated that in the case of determining one of the husband and wife as the debtor according to the basis of enforcement and without specifying the nature of the debt, if the enforcement agency judges that it belongs to the joint debt of the husband and wife based on relevant evidence, it can enforce the joint property of the husband and wife, and if the joint property of the husband and wife is still insufficient to be paid off after enforcement, May enforce the personal property of the other spouse.

The author believes that if the applicant for enforcement requests to directly change or add the spouse of the person subjected to enforcement in the enforcement procedure on the ground that the debt of the person subjected to enforcement determined according to the enforcement basis is a family common debt, the people's court shall not accept it. If it has accepted it, it shall rule to reject it, and the court may explain to the applicant for enforcement that it can solve it in another legal way. Because the change or addition of the person subjected to execution increases the civil liability of the outsider who does not bear the judgment obligation, and has a significant impact on the rights and interests of the outsider, it must be examined and handled in strict accordance with the legal procedures and legal conditions. The provisions of the Supreme People's Court on Several Issues concerning the alteration and addition of parties in civil execution (hereinafter referred to as the provisions on alteration and addition) does not stipulate that one of the husband and wife can apply for alteration and addition as the person subjected to execution of the case. Therefore, there is no legal basis for the person applying for execution to make such an application.

In the case that the debt is only recognized as personal debt according to the enforcement basis, and the person subjected to enforcement is only one of the husband and wife, the scope of property available for enforcement includes: the personal property of the person subjected to enforcement, the share of the person subjected to enforcement in the joint property of the husband and wife registered in the name of the person subjected to enforcement or directly occupied by the person, the share of the person subjected to enforcement in the joint property of the husband and wife registered in the names of both the person subjected to enforcement and his or her spouse The share of the person subjected to execution in the joint property of the husband and wife registered in the name of the spouse of the person subjected to execution or directly occupied by his or her spouse.

There are mainly two ways for courts across the country to implement the joint property of husband and wife: the first is to suspend the execution first, and then resume the execution and disposal of the share of the joint property of the person subjected to execution after the judgment of the joint owner or the creditor's subrogation. The second is to make a direct ruling on the overall auction of the property jointly owned by the person subjected to execution and others, and then execute or return the price according to the average share of each co owner after the transaction.

Article 14 of the provisions of the people's Court on sealing up, detaining and freezing property in civil execution: "The people's court may seal up, distrain or freeze the property jointly owned by the person subjected to execution and other persons, and notify the co owners in a timely manner. If the co owners agree to divide the common property and the creditors approve of it, the people's court may determine that it is valid. The effectiveness of the seal up, distrain or freeze shall extend to the property within the share enjoyed by the person subjected to execution after the agreement is divided; the people's court shall seal up, distrain or freeze the property within the share enjoyed by other co owners Rule to terminate. The people's court shall permit the co owner to bring an action for property analysis or apply for the executor to bring an action for property analysis by subrogation. The execution of the property shall be suspended during the litigation. " According to the above judicial interpretation, the court can first take preservation measures for the common property involved, then analyze and divide the common property through negotiation or litigation in the enforcement procedure, and then enter the disposal link. However, the settlement and division of the common property involved in the case by means of negotiation or litigation is not a prerequisite for the disposal of the common property. The common owner cannot exclude the enforcement of the people's court based on the identity of the common owner.

The author agrees with the legal principle of changing and adding the person to be enforced established in the provisions on changes and additions. If the spouse of the person to be enforced is not listed as the legal situation of adding the person to be enforced in the enforcement procedure, it cannot be added at will in the enforcement procedure, and the basic right of action of the spouse of the person to be enforced should be protected. Of course, we should also consider the realization of the creditor's rights of the applicant for enforcement, protect the legitimate rights and interests of bona fide creditors, promote transaction security, and maintain social and economic order. It is suggested that creditors should start from the source and protect their civil rights and interests.

There are two differences between personal debt and husband wife joint debt in the enforcement procedure: first, the husband wife joint debt with both husband and wife as the person to be enforced can enforce the personal property of both husband and wife and the husband wife joint property, while the personal debt can only enforce the share of the person to be enforced in the personal property and the husband wife joint property; Second, the husband and wife's joint debts with both husband and wife as the person subjected to execution can directly enforce the husband and wife's joint property, while the personal debts must have a property analysis link, and the shares belonging to the spouse of the person subjected to execution should be retained or protected during the disposal.

The author believes that the advance arrangement is better than the compensation after the event. When the debt is formed, the debt is set as the joint debt of husband and wife, and both husband and wife are listed as defendants in the lawsuit. Naturally, the scope of the property to be executed is expanded to the personal property of both husband and wife during the execution process, and the process of property analysis is also reduced during the disposal, which may avoid one spouse raising objections or filing an objection lawsuit from an outsider.

In addition, the property under the name of the spouse of the person to be enforced may not be enforceable when the basis for enforcement is personal debt. The property registered in the name of the spouse of the person subjected to execution may be the personal property of the spouse or the joint property of the husband and wife. The applicant for enforcement may also apply for enforcement of the joint property of the husband and wife registered in the name of the spouse of the person subjected to enforcement. After the court finds out that it is the joint property of the husband and wife and protects the corresponding share of the spouse, it may enforce the share belonging to the person subjected to enforcement.

"Declaration:

This article was originally written by the lawyer of Garvey law firm and only represents the author's own views. It shall not be regarded as a formal legal opinion or suggestion issued by Garvey law firm or its lawyer. If you need to reprint or quote anything in this article, please indicate the source