Execution of objection by outsiders: Can the agreement on property ownership in the divorce agreement be excluded from execution?

Author | Lawyer Xiang Dan

In the execution objection lawsuit of the outsider, the creditor applies for the enforcement of the real estate in the name of the debtor, but there are often cases where the outsider, as the spouse of the debtor, files an objection to the execution of the subject matter on the grounds that "he and the debtor have agreed on the ownership of the real estate in the divorce agreement, but he has not registered the transfer in time, and he is the actual right holder of the real estate involved in the case" and the outsider's execution objection claims to exclude the execution. In practice, the judgment results of such cases are quite controversial. This article will analyze similar cases as the starting point. Welcome everyone to communicate and correct.

(The full text is about 4000 words, and it is expected to take you about 10 minutes.)

First, the referee rules

From the retrieved cases, there are two main types of adjudication opinions in such outsider execution objection cases:

The first type: whether the outsider can enjoy the civil rights and interests that are sufficient to exclude the enforcement based on the agreement on the ownership of real estate in the divorce agreement, the case should be substantially analyzed from the aspects of the formation time of the right, the content of the right, the nature of the right, and the impact on the interests of the subject of the right, etc., and cannot be generalized.

Case 1: Wang ******** XX and other equity transfer disputes, and the lawsuit of execution objection by outsiders [ (2015) Minyi Zhizi No. 150]

The court held that the existing evidence could not prove that there was a subjective intention of malicious collusion between Zhong Moumou and Lin Moumou to avoid debt, and the intention of Zhong Moumou and Lin Moumou to dissolve the marriage relationship and the relevant property agreement was true. The agreement in the divorce agreement is the agreement on the distribution of property when the marriage relationship is dissolved. Before the transfer of the real estate in dispute is registered, Zhong Moumou and his children have the right to request the change of ownership of the real estate in dispute to be registered under their names.

First of all, from the time of establishment, the claim is much earlier than the monetary claim formed by Wang due to the dispute over the transfer of equity with Lin Moumou. Second, from the content, Zhong Moumou's claim is a claim against the house in dispute, while Wang's claim is a monetary claim, not a specific property. The house in dispute is only a general guarantee for Wang's claim as Lin Moumou's responsible property.

Third, from the nature point of view, the monetary claim between Wang and Lin Moumou is the personal debt of Lin Moumou that occurs after the dissolution of the marriage relationship between Lin Moumou and Zhong Moumou. Fourth, from the root cause of the occurrence, the real estate in dispute is the common property of the husband and wife produced by the legal construction during the marriage relationship between Zhong Moumou and Lin Moumou. When the marriage relationship between Zhong Moumou and Lin Moumou is dissolved, it is agreed that the real estate in dispute will be owned by Zhong Moumou and his children.

From a functional point of view, the real estate has the function of providing living security for Zhong Moumou and his children, and after the divorce, the real estate is owned, used and benefited by Zhong Moumou. Compared with Wang's money claims, the claim rights enjoyed by Zhong Moumou and his children have certain ethical priority.

Case 2: Liu Moumou, Zhou XX, Hebei XX Guarantee Group Co., Ltd., Xingtai XX Food Co., Ltd., Zhongyuan XX (Beijing) Asset Management Co., Ltd., Zheng Outsider's Execution Objection Case (2018) Supreme Court Civil End No. 462

The second-instance court held that: To determine whether the civil rights and interests enjoyed by Liu in the real estate involved in the case are sufficient to exclude enforcement, it should be analyzed from the time of formation of the rights, the content of the rights, the nature of the rights, and the impact on the interests of the rights subject. The basic facts of this case are highly similar to the facts found in the Supreme Court (2015) Minyi Zhizi No. 150 case. Based on the inherent judgment requirements for the same treatment in similar cases, this case also made the same judgment as the case, finding that Liu had sufficient civil rights and interests to exclude enforcement of the real estate involved in the case.

Some cases tried by the Shenzhen Intermediate People's Court also hold the above view, such as (2018) Guangdong 03 Minjian No. 17207, (2018) Guangdong 03 Minjian No. 14253, and (2021) Guangdong 03 Minjian No. 16515.

The second type: the agreement involving the property rights of the house in the divorce agreement is the disposition of the rights of the outsider, and the disposition does not have the legal effect of directly changing the property rights without the registration of the property rights change, nor does it have the legal effect against the third party.

Case 1: Liu Moumou and a branch of Bank of Communications joint stock company applied for retrial review and trial supervision of the execution objection of the executor (2019) Supreme Court Minshen No. 3379

The court held that the divorce agreement, as an internal agreement between Lu Moumou and Liu Moumou, is a legal disposition of their own rights by both parties, but whether such rights disposition can be opposed to a third party who is unaware of the content of the divorce agreement, should be based on whether the content of the disposition rights conforms to the law.

The dispute in this case is over the ownership of the house and the right to dispose of it. The establishment and modification of real rights in real estate should be registered in strict accordance with the law to have the effect of change of real rights. When Liu Moumou conditionally sued for the registration of the house transfer, he never claimed to handle it for many years, and neglected to exercise the right of claim obtained from the divorce agreement, resulting in the house involved in the case not being recognized as Liu Moumou's personal property or Liu Moumou's right to dispose of it because it did not meet the registration requirements.

Therefore, in the absence of Liu Moumou's right to oppose execution, his claim to exclude execution in this case cannot be established.

Case 2: Fu Moumou v. Lv Moumou Case of Execution Objection by Outsiders, Shanghai No. 3, Min No. 2 (Min) Chu Zi

The court held that: Article 9 of our country's "Property Law" clearly stipulates that "the establishment, modification, transfer and elimination of real property rights in real estate shall be registered according to law and shall have legal effect; without registration, it shall not have legal effect". In the divorce agreement, both parties agreed that the above house property rights shall be owned by a certain, which is Liu's disposition of his share in the disputed house property rights. The disposition does not directly have the legal effect of the change of real rights without the registration of the change of property rights, nor does it have the legal effect against a third party.

Due to the fact that the property rights of the disputed house have not been changed and registered, the third party, Liu Moumou, is still the registered property owner of the disputed house, and its share of property rights in the disputed house has not changed to Fu Moumou's name. Therefore, in the case of Liu Moumou's outstanding debt, the defendant, Lu Moumou, as the creditor of the third party Liu Moumou, requested that the property under Liu Moumou's name be judicially sealed and applied for enforcement in accordance with the law.

Some cases tried by the Shenzhen Intermediate People's Court also hold the above view, such as (2017) Guangdong 03 Minjian No. 14512 and (2021) Guangdong 03 Minjian No. 13482.

II. Relevant local regulations

1. Guangdong: Article 20 of the "Answers of the Higher People's Court of Guangdong Province to Key Questions on the Examination and Handling of Disputes over the Enforcement of Judgments": "The outsider and the person subject to enforcement were originally husband and wife, and a property division agreement had been signed at the time of divorce, stipulating that the house seized by the people's court and registered in the name of the person subject to enforcement would be owned by the outsider, but if the transfer procedures have not been completed, if the following conditions are met at the same time, execution may be excluded.

1. The divorce agreement was signed before the house was seized by the people's court and has been filed with the relevant departments; 2. The outsider has actually occupied the house involved in the case after the divorce agreement is signed; 3. The outsider has no fault for not transferring the house. "

2. Jiangsu: Article 27 of the "Guidelines for Hearing Cases of Objections to Enforcement and Objections to Enforcement by the Higher People's Court of Jiangsu Province (II) ": " (2) The real estate involved in the case is still in the name of the person subject to enforcement, and the transfer has not been registered in the name of the original spouse of the person subject to enforcement. If the original spouse of the person subject to enforcement files a lawsuit for objection to execution and objection to execution by an outsider on the grounds that he is the right holder, it will not be supported.

However, if the evidence provided by it can prove that it is not at fault for failing to register the transfer of house ownership, and the divorce property division behavior is earlier than the time when the debt is formed as determined by the enforcement basis, it should be supported. ( 3) The person subject to enforcement has failed to fulfill the divorce agreement, the original spouse has gone through litigation, arbitration, and has ruled that the person subject to enforcement has handled the house change registration for him before the property was seized, and the transfer registration has not been completed at the time of seizure. The original spouse files a lawsuit against execution by an outsider, claiming that the house belongs to him and requests exclusion of execution. If the divorce agreement is signed before the formation of the debt determined on the basis of execution, the judgment shall not be executed on the house.

3. Jiangxi: Article 27 of the Guidelines for the Trial of Cases of Objection to Enforcement by the Higher People's Court of Jiangxi Province: "In the execution of monetary claims, the owner of the house stipulated in the divorce agreement is inconsistent with the registered owner, and the owner of the house stipulated in the divorce agreement files a lawsuit for objection to enforcement against the house registered in the name of the person subject to enforcement. If the following conditions are met, it shall be supported: (1) the fact of divorce objectively exists; (2) the right to request registration for house change stipulated in the divorce agreement is generated before the creditor's right in the execution case; (3) there is no circumstance of evading execution or evading debts in the disposition of the house ownership in the divorce agreement."

4. Heilongjiang: "Answers to Several Questions from the Higher People's Court of Heilongjiang Province on the Trial of the Case of Objection to Enforcement": "27. When a couple divorces and divides property, the divorce agreement stipulates that the house belongs to one party or children, and the change of ownership has not been registered. If the dissolution of the marriage relationship and the division of the relevant property agreement are indeed the true intentions of the husband and wife, the husband and wife do not maliciously evade debts under the guise of divorce. After the property division, the right holder has been occupying and using the house. If the debt involved in the case is formed after the divorce property division, the transferee of the property division may request that the execution of the house involved in the case be excluded on

The above are the judicial policy documents in some regions that can be retrieved at present. The views held are that the provisions on the ownership of real estate in the "Divorce Agreement" have the effect of excluding execution under certain conditions.

III. Key points of practice

(1) From the retrieved cases and judicial policy documents in some regions, it can be seen that there are many cases in practice that hold the first judgment point of view, that is, whether the agreement on the ownership of real estate in the divorce agreement can have the effect of excluding the execution should be judged according to the circumstances of the case.

1. The time of signing the divorce agreement and the time of debt formation: Guangdong requires the time of signing the divorce agreement to be earlier than the time of seizure; ***********angxi, and Heilongjiang provinces all require the time of debt formation or the time of formation of the right to change the registration request to be earlier than the time of debt formation. Such provisions are mainly to exclude the intention of the husband and wife to maliciously collude to avoid debts. For example, in cases 1 and 2, the court held that the time of signing the divorce agreement was much earlier than the time of debt formation, and found that the person subject to execution and the person outside the case did not have subjective intent.

2. The function of real estate: In such cases, it is very important to measure the function of real estate: it should be to protect the lives of outsiders and children, and their basic survival rights are greater than general creditor's rights.

3. Possession: As an important appearance of rights, has the outsider actually occupied the property before the seizure or after the divorce agreement is signed? This is also to reduce the possibility of collusion between the person subject to enforcement and the outsider; in addition, in addition to direct possession for their own residence, school or living convenience for their children, the situation of renting the house involved in the case and then renting another house should also be considered as actual possession.

4. Fault situation: That is, which party is at fault for the failure to register the transfer of the property? For example, after the transfer time is agreed in the agreement, have both parties actively performed it? Did the outsider submit the transfer registration to the person subject to enforcement in a timely manner? Did you submit the transfer registration materials to the relevant departments in a timely manner? In the case No. 13482 (2021), the court rejected the request for exclusion of execution on the grounds that the outsider was negligent in exercising his own rights, "failing to transfer the real estate involved in the case to his own name in a timely manner, he should be able to foresee the possible legal consequences, and he should also bear the corresponding risks". This view was also held by the Supreme Court in the (2019) Supreme Court Civil Application No. 33

79case.

5. Content of rights: For the applicant for enforcement, is the real estate itself the subject matter of the lawsuit, or is it just a secured property within the scope of the subject's responsible property? The court will measure the closeness of the connection between the outsider and the applicant for enforcement and the house involved in the case based on this.

The above are the main factors that the court considers when trying such cases. At the same time, the type of claim for house change registration enjoyed by the outsider is compared with the type of claim enjoyed by the applicant for execution. Generally speaking, if the claim involved in the case is only an ordinary money claim, rather than a legal priority such as a security interest, the court will usually support the outsider's claim. The core tenet is to give priority to protecting the survival interests of the outsider and his children from an ethical perspective.

(2) Unlike the first perspective, which focuses on protecting the survival interests of outsiders, the second perspective focuses on protecting the interests of the applicant for enforcement. The main reasons for the judgment are two:

1. The establishment, modification, transfer, and elimination of real rights in real estate can only take effect when registered according to law; without registration, it will not take effect, unless otherwise provided by law.

2. The divorce agreement is an internal agreement between the two parties, and it is the legal disposition of their own rights by both parties. It can only bind both parties and cannot confront three people.

conclusion

Although there are many cases holding the first view in practice, and relevant judicial policy documents have been issued in some regions, there are cases of different judgments in the same court from the Supreme People's Court to local people's courts. For example, the Supreme People's Court: (2015) Minyi Zhizi No. 150, (2018) Supreme Court Minjian No. 462 and (2019) Supreme Court Minjian No. 3379; Shenzhen Intermediate People's Court: (2018) Guangdong 03 Minjian No. 17207, (2018) Guangdong 03 Minjian No. 14253, (2021) Guangdong 03 Minjian No. 16515 and (2017) Guangdong 03 Minjian No. 14512, (2021) Guangdong 03 Minjian No. 13482, ( 2021) Guangdong

03Minjian No. 13482.

In view of the uncertainty of the application of law and the judge's discretion, the author suggests that since the husband and wife have agreed on the ownership of the property in the divorce agreement, it is necessary to handle the transfer in a timely manner. If the agreement is conditional, it is necessary to pay attention to whether the transfer conditions have been achieved. Even if the transfer cannot be done temporarily due to some special reasons, the owner of the property agreement should also promptly file a claim to the registrant, make a transfer request, and leave marks, so as to avoid being found to be negligent in exercising power and at fault in the future, resulting in the exclusion of enforcement claims being dissupported.

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