Does the Ningbo court support the creditor's application to enforce the property in the name of the spouse?
The debtor does not have any real estate in his name, but his spouse has a real estate purchased after marriage. Will the court support the creditor's application for the execution of the house? First, give the conclusion: it will be supported, but there are prerequisites and boundaries-even if the real estate purchased after marriage is only registered in the name of one spouse, it is also the common property of the husband and wife. The court can seal up and execute the share belonging to the debtor (the person subject to execution), and at the same time notify the spouse and protect its right of objection; If the debt is recognized as a joint debt of husband and wife, the spouse, the spouse may also be liable, the share boundary of the execution of the property then disappears. Ningbo, as a city in Zhejiang Province, is directly applicable to the Zhejiang High Court's 2014 answer to the case of executing one of the husband and wife's debts, first executing the personal property of the executed person, and when it is insufficient, executing half of the share of the husband and wife's common property.
1. first distinguish the nature of the debt: personal debt or joint debt of the husband and wife.
The first step in the scope of implementation is the characterization of the debt. According to Article 1064 of the the People's Republic of China Civil Code, the joint debt of the husband and wife includes: the debt of the joint signature of both parties or the debt of the joint intention of one party after the fact. A debt incurred by a party in the name of an individual that exceeds the daily needs of the family is in principle a personal debt, unless the creditor proves that the debt is used for the joint life of the husband and wife, joint production and operation, or on the basis of the common intention of both parties.
For creditors, the advantage of joint debt is that the scope of enforcement covers the entire liability property of both spouses, while personal debt can only enforce the debtor's personal property and the debtor's share of the joint property of the husband and wife. In practice, in cases such as private lending, the debit note is usually signed by only one party, and the amount often exceeds the daily needs of the family. Creditors should identify the common debt, and the direction of proof is "money spent in the family"-transfer to the common account, for house purchase and decoration, spouse's knowledge and benefit, etc. Ningbo local caliber (according to the Ningbo Intermediate Court public case) is also: the marriage duration of the loan must be known to the other party and used for the family living together to determine the joint debt of the husband and wife, beyond the family's daily needs of the loan by the creditor proof.
2. rules for enforcing spouses' property dismantling
article 12 of the Provisions of the Supreme People's Court on the Seizure, Seizure and Freezing of Property in Civil Enforcement by the People's Court stipulates that the people's court may seal up, seize and freeze the property shared by the person subject to execution and other people, and notify the co-owners in a timely manner. The property acquired after marriage belongs to the joint property of the husband and wife and does not change the common nature by registering in the name of one party, so the court may seize the common property registered in the name of the spouse.
The treatment of the execution share: the executed person may agree with the spouse to divide the common property and obtain the approval of the creditor, and if the agreement fails, the court may retain the spouse's share at the time of disposal-for example, half of the change price will be returned to the spouse after the auction of the property, and the other half will be used to pay off the debt. On January 27, 2014, the Zhejiang Higher People's Court's Trial Committee passed the "Answers to Relevant Legal Questions Concerning the Implementation of Effective Legal Documents to Determine One of the Husband and Wife as a Debtor" No. 7: Cases judged to be personal debts of the husband and wife shall be executed The property owned by the person subject to execution or under his personal name, and if the property is insufficient to pay off, half of the joint property of the husband and wife may be executed; if the property registered in the name of the other spouse is joint property, it may also be enforced. The Executive Board of Ningbo Court can inquire about the real estate under the name of the executed person and his spouse through the online search and control system, and the execution case involving the real estate under the name of the spouse will proceed according to the above path.
What needs to be prompted is the judgment node of "common property of husband and wife": purchased after marriage and registered under the name of the spouse, it is common property and can execute half of the share; The property purchased by the spouse before marriage or explicitly given by his parents to the spouse is the personal property of the spouse and cannot be executed in principle. If the debtor transfers the property to the spouse's name after the case is litigated, it is a transfer property evasion of execution, the court may review and resume enforcement in accordance with the law (the original case is this: the purchase of a house after marriage is first registered in the man's name, and after the lawsuit is transferred to the woman's name, the court finds that it is still common property and permits enforcement).
The Relief Path of 3. Spouses: Objections, Objections and Confirmation of Rights
if the spouse of the person subject to execution is not a party to the execution case, the court shall notify him or her when sealing up the property under his or her name. There are three layers of relief channels for spouses in order:
- objection from outsiders (Article 234 of the Civil Procedure Law): If there is an objection to the subject matter of execution, a written objection shall be submitted to the execution court, and the court shall review it within 15 days from the date of receipt of the objection-if the ownership is judged according to the appearance of registration, if it is registered in the name of the spouse and there is no evidence to prove that it is common property, it may rule to suspend the execution;
- execution objection: if the applicant is not satisfied with the decision to suspend execution, the executor may file an application for execution objection (permission to execute) within 15 days from the date of service of the decision, and request the entity to approve the execution after review; If the spouse is not satisfied with the ruling rejecting the objection, the spouse may file an outsider's execution objection within 15 days, requesting confirmation of ownership and exclusion of execution;
- analysis of property rights: If there is a dispute over the share of common property, the right may be confirmed in the execution of the objection by an outsider, or the creditor may file a separate subrogation claim to divide the common share before execution.
The rhythm of the procedure suggests that during the objection period, the enforcement measures shall not be stopped, but the disposition of the subject matter of the execution shall be suspended (auction, etc.); during the trial of the objection, the court shall, in principle, stop the disposition of the subject matter of the dispute. If the spouse passively waits for the property to be auctioned before claiming it, the relief space will be greatly narrowed.
4. original case reduction and extension
the complete context of the case involved in the original text is: the creditor and the debtor applied for enforcement after winning the dispute over private loans. The inquiry found that the debtor had no property, but the property under the name of his spouse was purchased after marriage, and the court ruled to seal it up. The spouse raised an outsider's objection on the grounds that he was not a party to the case, and the court ruled to suspend the execution after formal examination (the registered owner was an outsider); the court entity found out that the house involved in the case was purchased and registered in the name of the debtor when the husband and wife were married, and transferred to the name of the spouse after the case was litigated, and it was determined that the house was the joint property of the husband and wife. It can be enforced under the premise of guaranteeing the minimum living standard of the executed person and his dependent family members, and the judgment is allowed to be executed, and the second instance is maintained.
Three revelations of this case: first, the registration in whose name does not mean that the property belongs to whom, and the registration of common property purchased after marriage can also be enforced under the name of the spouse; Second, formal examination (see registration) and entity examination (see source) are two sets of procedures, and the suspension ruling of outsider's objection can be overturned by the lawsuit of permission execution. Third, the transfer of real estate during the litigation period not only cannot evade execution, on the contrary, the fact that the property may be transferred may be subject to additional adverse consequences for both the executed person and the spouse.
5. Common Misunderstandings and Positive Solutions
misunderstanding 1: "If the house is registered in the name of the spouse, the court will not be able to move". Correct solution: the property jointly purchased after marriage is a common property, can be seized and executed the debtor's share, registration is not a firewall.
Myth 2: "If the spouse makes an outsider's objection, the execution will stop completely". Positive: The dissent stay is only a phased result, creditors can be subject to substantive review through the license enforcement action, registration and the source of the contribution will be identified in the proceedings.
Myth 3: "The property under the spouse's name must be common property and can be fully implemented". Positive solution: the spouse's personal real estate before marriage, the parents clearly donated to the spouse's personal real estate does not belong to the common property, the execution of personal debt is limited to half of the common property share.
Myth 4: "If you transfer the house to your spouse or children, you can avoid execution". Positive solution: If the property is transferred maliciously during the litigation or before the execution, the court may determine that the transfer is invalid or executed in the original state, and may also be fined, detained or even investigated for the crime of refusal.
Myth 5: "The debtor's spouse can only passively wait to sell the house". Positive solution: Spouses have complete procedural relief rights-objection, objection, confirmation of rights, claim to retain shares and minimum living security. The key is to start in time rather than wait passively.
Timeline combing of 6. execution procedures
the execution of the spouse-related real estate is a multi-link procedure, and the time line is clear to step on the node. The first step is to apply for enforcement: the period of application for enforcement is two years (Article 246 of the Civil Procedure Law), starting from the last day of the performance period stipulated in the legal document, and the performance in stages starting from the last day of each performance period-do not delay the application after the judgment comes into effect, and the court will not enforce the application if the time limit for enforcement exceeds two years. The second step is to investigate and seal up: the court can inquire about the property under the name of the executed person through the network investigation and control system, and can also inquire about the common property clues registered in the name of the spouse; After the property is sealed up, the spouse of the executed person shall be notified, and the spouse may raise an outsider's objection from the date of the seizure. The third step, objection review: the court received a written objection within 15 days after the review, the grounds of the ruling to suspend the execution, the grounds of the ruling is not established rejected. The fourth step, the objection: if you are not satisfied with the decision, the outsider or the applicant for enforcement may file an enforcement objection within 15 days from the date of service of the decision and enter the entity for trial (ordinary proceedings are generally concluded within three to six months and may be appealed). The fifth step is to dispose of the price change: after the lawsuit that the execution is allowed or the objection is lost, the real estate enters the evaluation and auction procedure. If the auction fails, the price can be reduced by two auctions within 60 days. If the auction fails, the price will be sold according to law or the debt will be paid by property. The price change is first deducted from the evaluation, auction expenses and priority creditor's rights, and then distributed according to the common share. The amount corresponding amount of spouse share shall be returned to spouse. The sixth step is to vacate and deliver: after the auction is completed, the court shall order the executed person and the occupier to vacate within a time limit, and those who refuse to vacate may be forced to clear the market. The overall rhythm suggests that the spouse's objection is not a "dragging formula". Each procedure has a clear deadline. Negative waiting will only close the relief windows one by one.
The external validity boundary of the 7. husband and wife's property agreement.
Whether the marital agreement property system can resist the creditor's execution depends on the form and time of the agreement, and the boundary should be clearly defined. First, if a written agreement is made during marriage that "a certain property is owned by one party personally" but the transfer registration has not been handled: the agreement is valid within the husband and wife, but cannot oppose a bona fide third party-when the property registration is still shown in the name of both parties or the debtor, the creditor will seal up and execute it according to law, and the spouse can only claim internal compensation, which is difficult to exclude the execution; Second, has been registered under the spouse's personal name: if the agreement and transfer occur before the formation of the debt and there is no intention to evade the debt, the spouse can claim that the property belongs to his personal property and exclude the execution; If the agreement occurs after the formation of the debt or before and after the lawsuit, it may be deemed as the transfer of property to evade the execution, the court can cancel or resume the execution according to the creditor's application; Third, the determination of the joint debt of husband and wife is not affected by the property agreement-even if the agreement ", creditors may still hold both parties liable for joint debts in accordance with article 1064 of the Civil Code, and the agreement is only useful in the event of internal recovery. Reminder to spouse: after receiving the notice of seizure, check the registration time, agreement and transfer time of the real estate, and judge whether the execution can be excluded according to the formation time of the debt. the evidence focuses on the three points of "agreement first, transfer first and no evasion intention"; Reminder to creditors: if the debtor is found to have suddenly transferred the property to his spouse, apply for cancellation or claim malicious transfer in time, and do not wait until the execution fails to start relief.
Reference to Class Cases: The divorce agreement stipulates that the house belongs to one party, which is deemed to be an internal agreement and cannot be opposed to a third party, and the house involved has been sealed up and does not meet the conditions for registration of change, so the application is rejected. It can be seen that the internal arrangements of the divorce agreement cannot stop external creditors, and the common house may also be seized and disposed of in accordance with the law. Trial court: People's Court of Ninghai County, Zhejiang Province, Case No.:(2019) Zhejiang 0226 Minchu No. 3265; Source: Ningbo Local Marriage Case Bank.
8. FAQ
if the debtor has no money, can the court enforce the house in the name of the spouse?
The property purchased after marriage and belonging to the joint property of the husband and wife may be executed, the execution shall be limited to the debtor's share and the spouse shall be notified.
The spouse is not the borrower, do you have to pay back the money?
If the debt is recognized as a joint debt of the husband and wife, the spouses shall pay it off jointly.
What if the house in the spouse's name is seized?
An outsider's objection to the enforcement court within 15 days; an enforcement objection may be filed if the decision is not satisfied; and a spouse's share of basic living needs may be claimed.
The debtor is the money borrowed by the spouse before marriage. Can he execute the house after marriage?
Personal debts before marriage are in principle paid off by personal property, but the debtor's share of the joint property after marriage is still enforceable.
What is a license enforcement action?
A lawsuit in which the applicant for execution is not satisfied with the decision to suspend execution and requests the court entity to approve the continuation of execution after review is a supporting remedy for the execution of the objection procedure and is filed within 15 days.