Ningbo spouse loan for the company's operation which circumstances belong to the common debt.
The operation of a company needs capital turnover, and the husband borrows 1 million yuan from others in his own name for the operation of the company. The wife is a shareholder of the company but does not participate in its management. The creditor sued for joint repayment by both husband and wife, while the wife defended that "the loan was borrowed by the husband personally and did not know about it. Whether debts incurred by one spouse through borrowing and then investing in the company’s operations should be classified as joint marital debt is a frequently disputed issue among small and medium-sized private enterprises in Ningbo. The conclusion is given first: if one of the spouses borrows money for the operation of the company, if the company belongs to the joint production and operation of the husband and wife, the spouse benefits from it, or the loan is based on the common meaning of both parties, it can be recognized as the joint debt of the husband and wife.
1. Legal Basis and Element Breakdown
The key provision is Article 1,064 of the Civil Code of the People's Republic of China: Debts incurred by both spouses through joint signatures or through one spouse's subsequent ratification, as well as debts incurred by one spouse in their own name during the subsistence of the marriage for the needs of daily family life, shall be considered joint debts of the spouses. Debts incurred by one spouse during the subsistence of the marriage, in that spouse’s own name and exceeding the ordinary needs of daily family life, do not constitute joint debts of the spouses; however, this does not apply if the creditor can prove that the debt was used for the common life of the spouses, for their joint production and business operations, or was incurred pursuant to a joint expression of intent by both spouses.
Dismantle this article and identify that there are three channels for common debt: first, common meaning-joint signature, ratification afterwards, knowingly borrowing and participating in the use; second, it is responsible for the daily needs of the family-the amount is not large, the purpose is daily, it is presumed to be common debt; third, the debt beyond the daily needs of the family, the creditor shall prove that it is used for "common life, joint production and operation or common intention". The amount of the company's business loan is usually large and exceeds the daily needs of the family, so take the third channel: the creditor must complete the proof of "for the joint production and operation of the husband and wife", and the spouse is not responsible for the proof. On the other hand, one of the spouses should also prevent "presumption"-those who respond passively and cannot prove that they have not participated in the business and have no benefit, at their own risk.
Breakdown of 2. situations: What is "joint production and operation"
Allocation based on the level of involvement and the extent of benefit: First, where both spouses jointly hold shares in the company and jointly make decisions and manage its operations, loans used for the company’s business are considered part of their joint production and business activities, and the spouse is likely to be held liable. Second, if the spouse is only registered as a shareholder or a registered legal representative, and does not participate in the decision-making operation and does not actually benefit, it generally does not belong to the joint production and operation-but the status of the spouse itself is an important fact, which needs to be judged comprehensively in combination with whether to participate in the operation and whether to benefit. It is not uncommon for Ningbo private enterprises to "hold shares in the name of the spouse and operate alone by the actual party", and the court will penetrate the court. Third, spouses who hold positions such as shareholders, senior executives, and financial officers and actually perform their duties can be presumed to participate in business operations. Fourth, if the company’s operating profits are used for family living expenses, or if the family relies on the company’s profits to cover its expenditures, a loan, even if taken out in the name of one party, may still be deemed to have been used for common living or joint business operations. Fifth, if the loan is used for the company but the company has suffered a long-term loss, has never been distributed to the family, and the spouse has not benefited, it is mostly recognized as personal debt. Sixth, if one party borrows money without authorization and the spouse does not know about it and does not ratify it, the creditor must prove it.
What needs to be specially pointed out is to distinguish between "corporate debt" and "shareholder's personal debt": the loan to the company, which is used and kept by the company, belongs to the company's debt, and the spouse's liability problem is transformed into the company's debt settlement problem; the loan is transferred into the shareholder's personal account and then put into the company, and there is no trace of loan and capital contribution, which is the dispute of personal borrowing responsibility. The evidence points in a completely different direction; before filing the lawsuit, the flow of funds should be clarified first.
3. Case Perspective: Different Trend of Two Ningbo Cases
For the first case, according to the open case of Ningbo Haishu Court (Li Moumou v. Chen Moumou and Wang Moumou's equity transfer dispute): the court determined that the outstanding equity transfer money was the joint debt of husband and wife, and the spouse Wang Moumou was responsible for the joint repayment-the spouse's identity and benefits had a significant impact on the determination result. The case suggested that the creditor should make sufficient evidence of whether the spouse participated and benefited.
In the second case, according to the judgment of Cixi Court (2018) Zhejiang 0282 Minchu No. 7747 and Ningbo Intermediate People's Court (2019) Zhejiang 02 Minzhong No. 1524, the amount of loans exceeding the daily needs of the family was not recognized as the joint debt of husband and wife due to insufficient proof by creditors. The comparison of the two cases shows that: the same type of "spouse-related" debt, the strength of the evidence determines the direction-the creditor can not come up with "borrowing for joint production and operation/spouse benefit" evidence lost, the spouse can not come up with "not involved in the operation, did not benefit" evidence may be presumed to be responsible.
The third deduction: In Company A, the husband holds 90% of the shares and serves as the legal representative, while the wife holds 10% of the shares, acts as the cashier in the company and receives the salary. The husband borrowed 800000 yuan from his good friend in his own name for company purchases. The wife claims that she is only an ordinary employee. The court held that the wife was a shareholder of the company and was actually involved in the financial work, that the company's profits were used for the common life of the family, that the loan was used for the operation of the company, that is, indirectly for the common life, and that the husband and wife were ordered to repay together. Conversely, if the wife is only a nominal shareholder, has no evidence of employment or benefit, and the company has been losing money for years, it tends to be recognized as the husband's personal debt.
4. Common Misunderstandings and Positive Solutions
Myth 1: If your spouse is a shareholder of the company, you are obligated to repay the company’s business debts. Positive explanation: the identity of a shareholder is not equal to a joint operation, and it must be judged in combination with whether to participate in the decision-making operation and whether to benefit; those who only hold shares in name and do not participate in the operation and do not benefit from it are generally not liable.
Myth 2: Borrowing for a company is a common debt. positive explanation: it is necessary to prove that "it is used for the joint production and operation of husband and wife" or "the spouse benefits" or "the expression of common intention", and simply "the money has entered the company" is not enough to make the spouse bear the responsibility.
Myth 3: The company makes money for the family, and all debts become common debts.Correct answer: Each loan still needs to be assessed on a case-by-case basis, taking into account its purpose as well as the spouse’s involvement and any benefits received; a one-size-fits-all approach is not appropriate.
Misunderstanding 4: The divorce agreement stipulates that "the debt belongs to one party" can fight against creditors. positive solution: the debt-sharing agreement of the divorce agreement is only valid within the husband and wife, and has no effect on the creditors (the "case statement" of the Ningbo Intermediate People's Court), and the creditors can still claim to both parties according to the Civil Code.
List of 5. evidence materials and key points of attack and defense
Creditors need to prepare: loan contract, transfer voucher (to prove the real delivery of funds); evidence of capital flow (the voucher of borrowing into the company's account or used for the company's procurement and payroll); evidence of spouse's participation in the operation (company registration, articles of association, records of shareholders' meeting, labor contract and social security of his employment, reimbursement signature, and work WeChat); evidence of the company's profits flowing to the family (dividend record, source of large household consumption). The spouse side needs to prepare: evidence of not participating in the operation (labor contract, social security deposit unit, salary flow, attendance record); Evidence of no benefit (no dividend record, family expenses not related to the company); Evidence of ignorance of the loan (communication records of both parties during the loan period and no signature of the loan contract); If necessary, apply to the court for access to the company's financial information, bank flow and social security records.
6. Jurisdiction, Interest and Enforcement Points
If the creditor claims that the husband and wife should repay together, he can sue to the court of the domicile of the defendant and claim against both husband and wife at the same time; if the husband and wife live in two places and have different domicile, he can choose the court of the domicile of any defendant to sue. The cause of the case is generally a private loan dispute or a dispute over the right of recovery, the prosecution should submit the loan contract, transfer vouchers, the spouse's participation in the operation or benefit of the clues, and apply for property preservation (freezing the spouse's bank account, sealing up his real estate vehicle), to prevent the judgment after the non-enforcement of property. In terms of the period of proof and the arrangement of the court session, if it involves the transfer of the company's account books and bank running water, an application for investigation and evidence collection or an application for a court investigation order shall be filed within the period of proof, and the overdue application may be rejected.
The treatment of interest is easy to be ignored: if the loan is identified as the joint debt of husband and wife, the interest generated during the marriage usually belongs to the scope of joint debt and is repaid by the husband and wife together; if it is only identified as personal debt, the spouse is not responsible for the interest. The interest rate is subject to the contractual agreement and the statutory protection cap (the private lending judicial protection rate is capped at four times the one-year loan market quotation rate LPR at the time of the establishment of the contract), more than some courts do not support. If the spouse is held responsible after divorce, he or she may recover from the actual user in accordance with the divorce agreement or Article 1089 of the Civil Code-the jurisdiction of the claim for recovery is as important as the preparation of evidence, and the judgment and repayment certificate shall be retained.
the particularity of the execution link: in the execution of joint debt cases, the court can seal up the property under the names of both spouses, but the necessary living expenses should be reserved for the share of the spouse's personal property; if the spouse thinks that the execution is wrong or the share is unfair, he can raise an objection to the execution according to law. If the creditor only sued the borrowing party and did not list the spouse, and only found that the spouse should be added after the judgment came into effect, he may sue separately to claim that the spouse shall bear the joint repayment responsibility, but pay attention to the connection with res judicata-matters not dealt with in the previous judgment, the latter lawsuit is not of course prohibited, but the burden of proof is still on the creditor's side.
Add a few more points about the procedural confrontation in the lawsuit: firstly, one spouse should not be absent after being sued-the absence will lose the opportunity of defense and proof, and the court may determine the joint debt according to the creditor's evidence; secondly, the electronic evidence such as chat records and transfer notes submitted by the creditor can be cross-examined around the authenticity and integrity, and apply for identification when necessary; thirdly, if the company's debts and personal debts are mixed, you can apply for the court to entrust the audit, distinguish the company's accounts from the personal accounts, and avoid putting all the company's operating losses into personal loans. Fourth, if the property under the spouse's name is sealed up during the execution stage, the execution objection may be raised according to the divorce agreement and the effective judgment, requesting to retain its due share and necessary living expenses. Fifth, if you are not satisfied with the effective judgment, can appeal within the statutory time limit or apply for retrial in accordance with the law, the relief channel is complete, the key lies in timely action rather than passive waiting.
If the evidence is prepared before the prosecution and the defense is considered before responding to the lawsuit, the initiative will not be sidelined. Whether it is a creditor or a spouse, the sense of evidence determines the direction of the case: one more joint signature when lending money and one more piece of evidence of participation in the operation when responding to the lawsuit may result in very different results.
class case reference: in the second instance, it is determined that the debt incurred by one party in the name of an individual is a joint debt of husband and wife, and the other party should bear half of the debt after divorce (the case is revised to repay 535727 yuan). Spouses who have borrowed money for joint family operations are liable; those who have not participated in the operation, have not benefited and have insufficient evidence are not liable. Trial Court: Case No. of Ningbo Intermediate People's Court of Zhejiang Province:(2017) Zhejiang 02 Minzong No. 2584; Source: Ningbo Local Marriage Case Bank.
7. Frequently Asked Questions
If the spouse is sued by the creditor, what should be the first step?
Don't respond negatively. As soon as possible, fix the evidence of "not participating in the operation, not benefiting, not knowing" (social security, labor contract, salary flow, communication record), and check whether the loan actually occurred and whether it was really used for the company, and submit written defense and evidence within the defense period; If necessary, apply to the court to obtain the company's account books and bank flow.
How can creditors avoid the money they lend becoming "personal debt"?
When lending a large amount of money, both husband and wife are required to sign together, or after borrowing, the unsigned party is required to sign for confirmation; transfer remarks The purpose of borrowing; the voucher for retaining funds to enter the company's business link. Joint signatures or subsequent ratification constitute the most direct evidence for recognizing a debt as a joint obligation.
After divorce, if you are sued again for joint repayment, can you still raise a defense?
Can. Divorce does not affect the rights of creditors to assert their claims against both spouses pursuant to Article 1064 of the Civil Code; if the debt is determined to be a joint obligation and you have already borne a greater share under the divorce agreement, you may seek reimbursement from the other party in accordance with the agreement, provided that the agreement contains a clear provision regarding the allocation of the debt.
At what point in time is it most advantageous for a creditor to file a lawsuit?
When it is found that the husband and wife have signs of divorce or one party has the risk of transferring property, the sooner the lawsuit is filed, the better it is: the lawsuit can apply for property preservation at the same time, and the bank account and assets of the spouse can be frozen; if the other party's divorce agreement stipulates the debt to one party before the recovery, although the agreement does not take effect on the creditor, the recovery procedure and execution cost will increase. In terms of limitation, the loan is generally calculated for three years from the expiration of the repayment period or the expiration of the grace period, and the lender shall periodically make written reminders and retain vouchers to interrupt the limitation period.
What remedies are available to spouses after the loan is recognized as a joint debt?
After paying off, the spouse can recover the extra part from the actual user according to the divorce agreement or Article 1089 of the Civil Code; if the judgment is considered wrong, he can appeal or apply for retrial within the legal time limit. In addition, if the spouse is a shareholder in the name of the company and does not actually participate in the operation, the social security record, labor contract, salary flow and other evidence of non-participation in the operation and non-benefit shall be retained, both for the defense of this case and for the division of responsibilities in the recovery and subsequent other litigation.
8. Lawyer's Practical Insights
Spouses borrow money in their own name to invest in the company's operation. Whether they are common debts when they get divorced or creditors come to their homes is a high-incidence dispute among many small and medium-sized private enterprises and families. From the experience of handling cases, there are several channels: common meaning expression, used in family daily life, used in common life or common production and operation.The company's business loans are usually large, obviously beyond the daily needs of the family, so the burden of proof falls on the creditor-he can prove that the money is used for the joint production and operation of the husband and wife or the spouse therefore benefit, can not be raised, the borrower is personally responsible. One spouse should not be vaguely mentioned by "the company is husband and wife, and the debt is of course repaid together.
How to identify "joint production and operation" depends on the degree of participation and benefit: if the husband and wife hold shares and make decisions and management together, the spouse is likely to bear the responsibility; if only the registered shareholder or the registered legal representative does not participate in the operation and does not benefit, it is generally not counted, but the identity of the spouse itself is an important fact, and the court will penetrate the review. The spouse's self-defense action is to take the initiative to leave a certificate-whether to actually perform their duties, the source of family expenses, whether the loan has entered the family account, whether the dividend has been used at home; Passive failure to appear in court and failure to provide evidence are more likely to be presumed to be responsible.
On the negotiation and avoidance of the pit, the scope of the debt sharing clause in the divorce agreement should be clearly written, but it should be understood that it is only valid within the husband and wife and has no resistance to the unwitting creditors, so don't take it as a talisman for thorough cutting. If you are really sued, the focus of the defense of the party claiming personal debt is "borrowing beyond the daily needs of the family, creditors can not raise common use or common benefit. In terms of timing, the sooner the fact that there is no participation and no benefit is fixed, the more the risk of being "bound" can be reduced.
whether "spouse's loan is used for company operation" constitutes joint debt or not, the essence is evidence attack and defense: the creditor should prove "used for joint production and operation, spouse's benefit or common intention expression", and the spouse should prove "not participating, not benefiting and not knowing". The advice to creditors is to let the husband and wife sign together before lending money and keep the funds for business. The advice to the shareholder's spouse is to keep the evidence that the individual is not involved in the operation, separate the company's accounts from the family's accounts, and never give up the defense because of the old concept of "husband and wife as one. Ningbo private economy is active, family shareholding is common, such cases in particular to penetrate the "nominal shareholders" coat to see the actual participation and benefit, case evidence determines success or failure.