Insights

Ningbo each other fictitious debt lawsuit how to deal

Ningbo Author：LuXu WANG

Before the divorce case was over, a strange creditor suddenly came to the door with an IOU. The purpose of such operations is often to dilute the common property, to deal with it can not only rely on grievances, to find a force in the rules of proof.

1. the identification signal of false debt.

Several typical characteristics are worth noting: the formation of the IOU just after the rift in the marriage; the close relationship between the lender and the borrower; only the IOU has no actual proof of delivery; the large amount without any collection record; and the flow of funds to the borrower's personal consumption or return.

See if there is real delivery.

The establishment of private lending should not only have the loan agreement, but also have the actual delivery. Only IOUs with no transfer or cash withdrawal records are the most common breakthrough.

2. rules of proof for the determination of co-debt.

If the creditor claims that the debt is a joint debt beyond the needs of the family's daily life, the creditor shall prove that the debt is used for the husband and wife to live together, produce and operate together, or on the basis of the common intention of both parties. The burden of proof is not on the accused spouse. Ningbo has a clear judgment on this: according to the judgments of Cixi court (2018) Zhejiang 0282 Minchu No. 7747 and Ningbo intermediate people's court (2019) Zhejiang 02 Minzong No. 1524, the creditor must prove that the loan amount exceeds the daily needs of the family is used for the husband and wife to live together, produce and operate together or express their common intention, otherwise it will not be recognized as the husband and wife's common debt.

You don't have to prove your innocence.

Many people are eager to prove that they do not know when they come up. In fact, the direction should be to question whether the creditor's evidence meets the standard. The pressure is on the other side.

3. participate in the proceedings as a third party

if it is found that the lawsuit between the spouse and others may damage their own rights and interests, they may apply to participate in the lawsuit as a third party; if an effective judgment has been made, those who meet the conditions may file a lawsuit for revocation by a third party. Don't think that if you are not the defendant, you have nothing to do with yourself.

Absence means waiver of cross-examination

by not participating in the proceedings, the opportunity to challenge the authenticity of the IOU and the delivery of the payment is lost, but the verdict may point directly to the common property.

The Legal Consequences of 4. False Litigation

if a civil lawsuit is brought on the basis of fabricated facts, which impairs judicial order or seriously infringes upon the legitimate rights and interests of others, the court may impose a fine or detention; if a crime is constituted, criminal responsibility shall be investigated according to law. This is the strongest deterrent.

Leads may be submitted to the court

if signs of collusion are found, they can explain in writing to the court and apply for an investigation into the lender's financial capacity and flow, and false lending often reveals a flaw in the source of funds.

You can request less points when 5. split.

If the joint debt of the husband and wife is forged or altered in an attempt to occupy the property of the other party, the joint property may be divided less or not. This rule makes the party of the fictitious debt not only fail to achieve the goal, but also pay an additional price.

Investigating lenders is a breakthrough.

The weak link of false debt is usually on the lender's side: whether its income level can support large loans, whether the source of funds is clear, whether there is a record of cash withdrawal or transfer in the same period, often a check-up.

The 6. has already decided, can it be saved?

If the effective judgment has been made, a third party may file a lawsuit for revocation or apply to the procuratorial organ for supervision if the conditions are met. It should be noted that there is a clear time limit for the third party to withdraw the lawsuit. If it is filed within six months from the date when it knows or should know that the civil rights and interests have been damaged, the remedy will be lost.

1. The six-month period to remember

many people only discover such a debt at the enforcement stage, which may be long before the judgment takes effect. After discovery, the deadline should be calculated immediately and started as soon as possible, and cannot be prepared slowly.

2. Focus on the unusual point of action.

False debt litigation often appears before and after the filing of divorce proceedings. When this coincidence of time is discovered, the relevance of the two cases should be clearly pointed out in the defense and requested to be examined by the court together. This angle often attracts attention.

7. case proof

in practice, the creditor only submitted a debit note of about 580000 yuan without any actual delivery certificate. The court found that the loan relationship was not established and was not recognized as a joint debt of the husband and wife.

In practice, another case found that one party colluded with others to forge about 1.1 million yuan of debt, the court did not determine, and in the division of common property to make a 25% less treatment.

In practice, the creditor sued less than one month after the divorce lawsuit was filed, and the amount involved was about 450000 yuan. The court determined that the loan relationship was doubtful in combination with the flow of the funds and did not determine it as a joint debt.

8. Risk Alert

  • eager to prove his innocence and ignore the other side's lack of proof.
  • Not applying to participate in the proceedings resulted in the loss of the opportunity for cross-examination.
  • Failure to verify the lender's ability to lend funds.
  • Missed the deadline for the third party to withdraw the lawsuit.
  • Only deny that the debt does not advocate division when less.

9. FAQ

do I have to prove my own fictitious debt?

No need. Debts that exceed daily needs are proved by creditors to be joint debts.

I'm not the defendant. Can I participate?

You can apply to participate in the proceedings as a third party and, if necessary, bring a third-party revocation.

How do you expose a fake IOU?

Focus on verifying the actual delivery, the lender's financial capacity and the final flow of funds.

What are the consequences of fictitious debt?

Can be fined detention, constitute a crime to investigate the criminal responsibility, the division of property will also be less points.

How to check the problem of the lender?

Check their income level, source of funds, cash withdrawal and transfer records for the same period, false loans are mostly exposed here.

Can the verdict be saved already?

Eligible third-party revocation claims must be filed within six months of knowing that the rights and interests have been damaged.

Practical Experience of 10. Lawyers

A strange creditor suddenly appeared in the divorce case to take a debit note to the door, mostly not to collect debts, but to dilute the common property. To deal with this situation, it is useless to cry out for injustice. We should find a force in the rules of proof. First of all, we can look at several abnormal signals: whether the formation of the debit note happens to be after the marriage change, whether the lender and the borrower are closely related, whether there is a real transfer and delivery voucher, the amount is very large but there is no collection record, whether the money flows to the borrower's personal consumption. Grasping these doubts, there is a breakthrough in questioning.

The key point is that you don't need to prove that the debt is false. Large debts beyond the daily needs of the family, if the creditor claims to be a joint debt, the proof is that he wants to prove that the money is used for the husband and wife to live together, co-production and operation, or you have a common meaning, can not prove that the joint debt. Therefore, your response direction is to organize around whether the creditor's evidence is valid, such as pointing out that there is no real delivery, the money has nothing to do with the family, and you have never participated in or ratified it, instead of being busy proving your innocence and taking the pressure on yourself.

There are still several procedural moves that can be used: if the creditor has already filed a lawsuit, he can apply to participate in the other party's debt lawsuit as a third party and find out the facts in front of his own eyes, instead of waiting for the judgment to take effect before passively responding; If the other party is found to have forged debts and false litigation, the corresponding legal consequences can be claimed. If the debt has been sentenced to divorce and division, it is found to be fictitious afterwards, relief such as re-division may also be sought in accordance with the law. At the same time, in the division of divorce property, it is possible to claim less or no division of the other party's acts of forging debts and attempting to usurp property, turning it from a passive beating to a point of active counter-action.