Ningbo divorce agreement agreed to voluntarily give up all property, "penniless" can avoid debt?

Source WeChat Public Number: The Judicial Case Research Institute of the Supreme People's Court and the Shanghai High Court As the old saying goes, it is only natural to repay debts. However, some debtors have managed to become "persons with no property to enforce" in order to avoid their debts ". Are these "little tricks" really useful? In the face of such a situation, how should creditors protect their legitimate rights and interests? Recently, the Shanghai Songjiang District People's Court (hereinafter referred to as the Songjiang District People's Court) concluded a case of a creditor's right of revocation dispute. Recently, the plaintiff Chen sued the people's court as a creditor, demanding that the divorce agreement between the defendant Zhou and his wife Tian be revoked. This is the second time that Chen and Zhou have gone to court. Before, because Zhou injured Chen in the community, the two sides did not reach an agreement on the amount of compensation. Chen sued the people's court, and the people's court finally ruled that Zhou should pay Chen Mou for medical expenses, disability compensation and other expenses of more than 200,000 yuan. However, during the execution of the case, it was found that there was no property available for execution under Zhou's name. It turned out that after the previous judgment of the first instance, Zhou and Tian went through the divorce procedures in the Civil Affairs Bureau. The divorce agreement stipulated that the two houses under the names of both parties were owned by Tian and the debts were borne by Zhou. After their divorce, they immediately changed the owner of the house in Shanghai to Tian. Therefore, Chen, as a creditor, filed a lawsuit in the people's court, demanding that the provisions of the property agreement in Zhou and Tian's divorce agreement be revoked, and that Zhou and Tian bear the joint repayment responsibility for Chen's legal fees, travel expenses and property preservation insurance premiums. The people's Court of Songjiang District, the court's judgment, held that if the debtor disposes of the property rights and interests without compensation by giving up the creditor's rights, giving up the secured claims, transferring the property without compensation, or maliciously extending the performance period of its due claims, which affects the realization of the creditor's claims, the creditor may request the people's court to revoke the debtor's behavior. In this case, the effective judgment of the people's court confirmed that Chen had a claim against Zhou, but Zhou has not fulfilled the corresponding payment obligation to Chen. The two houses involved in this case were purchased by the defendants Zhou and Tian after marriage and were originally registered in their names. The two houses are the joint property of the two spouses. Zhou agreed to return the ownership of the two houses involved in the case to a certain person in the field by way of divorce by agreement and did not obtain any housing consideration or other property, which was obviously an act of free transfer of property and constituted damage to Chen's creditor's rights. According to this, the Songjiang District People's Court ruled to revoke the property division clause in Article 3 of the Divorce Agreement signed by the defendants Zhou and Tian, that is, the agreement that the two houses should be owned by the defendant Tian, and held that the necessary expenses for the creditor to exercise the cancellation right should be borne by the debtor, so the court also ruled that Zhou should pay Chen a lawyer's fee, property preservation insurance premium, etc. After the judgment of this case, the debtor Zhou knew clearly that he could not evade debt repayment through divorce, and took the initiative to fulfill all the debts and bear all the expenses to the creditor Chen, and the dispute between the two parties was resolved. The judge said that Li Na, the fourth-level senior judge of the Sijing People's Court of the Songjiang District People's Court, passed the strict application of the civil code on the establishment of the creditor's right of revocation, and revoked the debtor's behavior of disposing of property free of charge, and made it clear that "it is not possible to give up property free of charge in order to avoid debts." Thus protecting the legitimate rights and interests of creditors, safeguarding honesty and credit, and credit, and playing a leading role in building a leading role

1. creditor avoidance system

the system of creditor's right of avoidance is one of the core systems of creditor's rights protection, which aims to ensure that creditors realize their claims and give creditors the right of avoidance under certain conditions, thus interfering with the debtor's freedom to dispose of their property arbitrarily, but note that the creditor's right of avoidance can only be exercised through litigation. The establishment requirements of the creditor's right of revocation are as follows: first, there are creditors with legally determined monetary claims; second, the debtor has carried out free disposition, or has carried out paid disposition at an obviously unreasonable price, and the counterpart of the paid disposition is malicious; third, the above-mentioned disposition of the debtor affects the realization of the creditor's claim; fourth, the creditor requests the court to cancel the above-mentioned behavior of the debtor. Special attention is paid to the fact that when the debtor disposes of property without compensation, there is no need to consider whether the counterparty is at fault. However, at the same time, the exercise of the right of avoidance has a statutory exclusion period, the creditor shall exercise the right of avoidance within one year from the date of knowing or should have known the cause of avoidance, and if the debtor does not exercise the right of avoidance within five years from the date of the debtor's act, the right of avoidance shall be extinguished.

The legal effect of the 2.'s exercise of the creditor's right of avoidance.

If the debtor's act affecting the realization of the creditor's claim is revoked, it shall not be legally binding from the beginning. That is, the relevant legal act has no legal effect of binding the parties when it is revoked and retroactively when the act is made. The creditor exercises the right of avoidance in order to realize the return of the debtor's property. Article 540 of the Civil Code provides that the exercise of the right of avoidance is limited to the creditor's claim. The necessary expenses for the creditor to exercise the right of avoidance shall be borne by the debtor. The necessary costs here generally include attorney's fees, travel expenses, property preservation insurance premiums, etc.

3. divorce is not true or false, debt can not escape

divorce agreement is a compound agreement between men and women on the dissolution of marriage, child support and property division, which is the scope of the autonomy of the parties. Once the divorce agreement is registered in the civil affairs department and the divorce certificate is obtained, the corresponding legal consequences will be produced. Here, the judge reminds the public that any attempt to evade debt by using the principle of autonomy in the marriage system is not only disrespectful to marriage, but also unable to achieve the purpose of debt evasion. In addition, there is no concept of "false divorce" in law. Even if the creditor exercises the right of revocation to cancel the property division clause in the divorce agreement, it will not affect the legal effect of the divorce agreement on the dissolution of marriage, child support and other status relations.

This line of thinking is also applicable in Ningbo. According to Ningbo Intermediate People's Court's "case statement", "Divorced," How to Calculate "Account"? ", the agreement on debts in the divorce agreement is invalid to the third party (creditor), but one party can recover compensation from the other party according to the divorce agreement after paying off the debts according to the agreement or according to law. According to the Ninghai Court case reported by China's Ningbo Net in December 2014, the female boss first transferred 90% of the equity to divorce and then transferred to brother in law at a low price by her husband in order to evade debts, both transfers were invalidated for malicious collusion-the combined operation of" divorce + transfer "is also difficult to escape judicial review.

The law links to Article 106 of the the People's Republic of China Civil Code during the mortgage period, the mortgagor may transfer the mortgaged property. If the parties agree otherwise, they shall follow their agreement. If the mortgaged property is transferred, the mortgage shall not be affected. If the mortgagor transfers the mortgaged property, he shall notify the mortgagee in time. If the mortgagee can prove that the transfer of the mortgaged property may impair the mortgage, he may request the mortgagor to pay the mortgagee the proceeds of the transfer to the mortgagee in advance of the debt or deposit. The excess of the transferred price over the amount of the claim shall be owned by the mortgagor, and the shortfall shall be paid off by the debtor. Article 538 Where a debtor disposes of property rights and interests without compensation by abandoning its claim, waiving the security of the claim, transferring property without compensation, or maliciously extending the period of performance of its due claim, which affects the realization of the creditor's claim, the creditor may request the people's court to revoke the debtor's act. Article 539 If the debtor transfers property at an obviously unreasonable low price, assigns the property of another person at an obviously unreasonable high price, or provides security for the debts of another person, which affects the realization of the creditor's claim, the debtor's counterpart knows or should know the situation, the creditor may request the people's court to revoke the debtor's act. Article 540 The scope of the exercise of the right of avoidance shall be limited to the creditor's claim. The necessary expenses for the creditor to exercise the right of avoidance shall be borne by the debtor. Article 541 The right of avoidance shall be exercised within one year from the date on which the creditor knows or should have known the cause of avoidance. If the right of revocation is not exercised within five years from the date of the debtor's act, the right of revocation shall be extinguished. Article 542 If the debtor's act affecting the realization of the creditor's claim is revoked, it shall not be legally binding from the beginning.