Lawyer's Perspective | Research on the issue of joint property in the name of the spouse for the enforcement of personal debts
【Zhuhai lawyer, Zhuhai legal consultation, Zhuhai law firm, Jingshi law firm, Jingshi Zhuhai law firm】
This article comes from the official account of Beijing Jingshi (Zhengzhou) Law Firm
Authors: Ma Yu, Li Yiding, trainee lawyer
1. Formulation of the problem: the dilemma of the enforcement of the personal debts of the husband and wife in the enforcement practice
According to the current judicial enforcement of the personal debts of the husband and wife, based on the principle of appearance of real rights, when there is no personal property in the name of the person subject to enforcement, the enforcing court will generally not take the initiative to inquire, seal, seize and freeze the property in the name of the spouse of the person subject to enforcement. If the person applying for enforcement believes that the property actually in the possession or registered name of the spouse of the person subject to enforcement is the joint property of the husband and wife, he may apply in writing to the court for sealing, seizing or freezing the property. After sealing, seizing, or freezing the corresponding property, there are different methods as to whether the court will directly enforce the relevant property.
Even according to the current legal interpretation of the joint property of the spouses, it can be presumed that the debtor in the husband and wife should own half of the joint property of the spouses, so that the personal debts of the husband and wife can be enforced within a certain extent. However, in the absence of clarity in the relevant legal provisions, the issues of whether the property registered in the name of the spouse can be enforced and how to ensure the enforcement have not been completely resolved, and there are still problems of enforcement. For example, some courts require that the joint property of the person subject to enforcement must first be divided through a lawsuit of subrogation, and then the share belonging to the person subject to enforcement must be enforced according to the share of property determined through the lawsuit of subrogation. Although this practice guarantees the legitimacy of the enforcement procedure, it seriously affects the efficiency of implementation. It also makes many debtors choose to register their property in the name of their spouse or in the name of the husband and wife to resist judicial enforcement.
Second, the current situation of practice: first analyze the production and then implement?
Article 12 of the Provisions of the Supreme People's Court on the Sealing, Seizure and Freezing of Assets in Civil Enforcement by the People's Courts stipulates that: "The people's court may seal, seize and freeze the property jointly owned by the person subject to enforcement and other persons, and promptly notify the co-owners.
Where the co-owners agree to divide the common property and it is approved by the creditors, the people's court may find it valid. The effect of sealing, seizure, or freezing shall be the property within the share enjoyed by the person subject to enforcement after the division by agreement, and the people's court shall rule to lift the sealing, seizure, or freezing of the property within the share enjoyed by the other co-owners.
Where a co-owner initiates a lawsuit for property dissolution or applies for subrogation by the person applying for enforcement, the people's court shall permit it. Enforcement of the property is suspended during the proceedings. ”
According to this article, there is a view that after the enforcing court has taken measures to seal, seize or freeze the property in the name of the spouse of the person subject to enforcement, the enforcing court has no right to directly enforce the joint property of the husband and wife before the property is disposed of, that is, it must "first dissolve the property before enforcement". Although this method can meet the requirements of procedural legitimacy and provide a basis for the enforcement of the part of the joint property of the husband and wife that belongs to the person subject to enforcement, it will lead to the applicant for enforcement having to wait for the completion of the property separation between the person subject to enforcement and his or her spouse or the subrogation of the property division lawsuit before continuing to enforce the property, which will directly lead to the lengthening of the enforcement period and will also affect the effect of enforcement due to the uncertainty of the property division itself.
In contrast to this view, in order to balance the efficiency of enforcement and the protection of the legitimate rights and interests of the spouse of the person subject to enforcement, there is a view that the joint property of the husband and wife should be directly enforced and half of the spouse's share should be reserved. That is, the property in the name of the spouse of the person subject to enforcement shall be directly sealed, seized and frozen, and disposed of, and half of the share shall be reserved for the spouse of the person subject to enforcement at the time of disposal. This view avoids the reduction of enforcement efficiency caused by the early division of the joint property of the husband and wife, and at the same time protects the legal rights of the spouse of the person subject to enforcement by reserving half of the share. If the spouse of the person subject to enforcement believes that the distribution of the corresponding share of property is wrong, that it is not the joint property of the husband and wife but his own personal property, or that there are other objections, he or she may also seek relief by means of enforcement objections.
3. Lawyer's point of view: Directly enforce the share of the joint property enjoyed by the person subject to enforcement, such as the person subject to enforcement
If the spouse has an objection, he or she may be able to obtain relief through the enforcement of the objection.
In the author's opinion, the dilemma of enforcing the personal debts of husband and wife in enforcement practice stems from the conflict between the principle of appearance of real rights based on the enforcement process and the joint system of post-marital income specified in the Civil Code. Before the judicial interpretation had no clear and detailed provisions, in order to balance the efficiency of enforcement with the joint property rights and interests of the spouse of the person subject to enforcement, it was a more feasible practical path to directly enforce the share of the joint property enjoyed by the person subject to enforcement.
That is, for the property jointly owned by the spouse of the person subject to enforcement and the person subject to enforcement, the enforcing court may take measures to seal, seize or freeze it, but it shall notify the co-owners in a timely manner. The co-owners may initiate a lawsuit for property dissolution in accordance with the relevant provisions of Article 12 of the Provisions on the Seizure, Seizure and Freezing of Property, and the person applying for enforcement also has the right to file a lawsuit for property dissolution by subrogation, and the enforcement shall be suspended during the litigation period. If the co-owner does not file a lawsuit for property dissolution or the applicant for enforcement does not file a lawsuit for subrogation of property dissolution, the enforcing court has the right to directly enforce the common part of the person subject to enforcement in the joint property of the husband and wife, but shall reserve half of the share for the spouse of the person subject to enforcement. If the person subject to enforcement raises an objection based on substantive rights, the provisions of the Civil Procedure Law may be applied to provide rights relief through the enforcement objection procedure.
In judicial practice, this view is also supported by many typical cases.
Case 1: Supreme People's Court (2017) Supreme Law Min Shen No. 2083
The gist of the adjudication: The people's court may seal, seize, or freeze the property jointly owned by the person subject to enforcement and other persons, and promptly notify the co-owners. Where the co-owners agree to divide the common property and it is approved by the creditors, the people's court may find it valid. the effect of sealing, seizure and freezing and the property within the share enjoyed by the person subject to enforcement after the division of the agreement; The people's court shall rule to lift the sealing, seizure, or freezing of property within the share enjoyed by other co-owners. Where a co-owner initiates a lawsuit for property dissolution or applies for subrogation by the person applying for enforcement, the people's court shall permit it. Enforcement of the property is suspended during the proceedings. The right of the co-owner to file a lawsuit for property dissolution or to apply for subrogation of the executor to file a lawsuit for property dissolution, rather than the legal obligation to file a lawsuit for property dissolution. That is, it is not necessary to "analyze the production before executing".
Case 2: Yinchuan Intermediate People's Court (2019) Ning 01 Min Zhong No. 1978
The gist of the adjudication: The people's court may seal, seize, or freeze the property jointly owned by the person subject to enforcement and other persons, and promptly notify the co-owners. Where the co-owners agree to divide the common property and it is approved by the creditors, the people's court may find it valid. the effect of sealing, seizure and freezing and the property within the share enjoyed by the person subject to enforcement after the division of the agreement; The people's court shall rule to lift the sealing, seizure, or freezing of property within the share enjoyed by other co-owners. Where a co-owner initiates a lawsuit for property dissolution or applies for subrogation by the person applying for enforcement, the people's court shall permit it. Enforcement of the property is suspended during the proceedings. The right of the co-owner to file a lawsuit for property dissolution or to apply for subrogation of the executor to file a lawsuit for property dissolution, rather than the legal obligation to file a lawsuit for property dissolution. That is, it is not necessary to "analyze the production before executing".
Case 3: Qingdao Shibei District People's Court (2021) Lu 0203 Zhiyi No. 166
The gist of the adjudication: In the enforcement procedure, the share of the joint property of the husband and wife belonging to the person subject to enforcement can be procedurally judged and regarded as the property available for enforcement, that is, the scope of the property of the person subject to enforcement can be judged and analyzed, and the part of the joint property registered in the name of the spouse that belongs to the person subject to enforcement can be confirmed and enforced if the preconditions are met. In the 2013 Q&A II on Difficult Enforcement Issues, the Research Office of the Executive Bureau of the Supreme People's Court summarized the common practice in the practice of enforcement courts in many places, that is, when the enforcement basis does not deny that the debt is a joint debt of the husband and wife, the property during the existence of the husband and wife is presumed to be the joint property of the husband and wife, and the debt is repaid with the share belonging to the person subject to enforcement, and the spouse is given a remedy to raise an objection to enforcement. Therefore, the prerequisites for this approach are:
(1) The basis for enforcement has not determined that the case debt is the personal debt of the person subject to enforcement, and the type of debt is clearly a personal debt after preliminary review of the enforcement procedures;
(2) When the enforcing court controls the property in the name of the spouse of the person subject to enforcement, it belongs to the period of existence of the husband and wife relationship. If the two prerequisites are met at the same time, it is presumed that the property in the name of the spouse of the person subject to enforcement is the joint property of the husband and wife, and a ruling is made to seal, seize or freeze the joint property of the husband and wife in the name of the current spouse of the person subject to enforcement, and after disposing of it, the debt shall be repaid with the share belonging to the person subject to enforcement;
About the Author:
Ma Yu
Lawyer of Beijing Jingshi (Zhengzhou) Law Firm
Areas of Expertise
Focusing on contract disputes, he is good at dispute resolution of difficult cases, civil and commercial dispute resolution, financial and insurance legal affairs, corporate legal affairs, etc., and solves difficult problems for many corporate customers with a positive attitude, which is highly recognized by the parties.
Li Yiding
Beijing Jingshi (Zhengzhou) Law Firm, trainee lawyer
Areas of Expertise
He is good at dispute resolution in the field of contracts, focusing on the research and analysis of difficult cases. Based on the position of the parties, focusing on the demands of the parties, and striving to properly resolve disputes, obtain satisfactory recognition.
- END -
Editor / Wang Mengnan
Review / Jin Fangzhou