Brief facts of the case:
Gai Moujia remarried after divorcing Gao. During the period when the divorce agreement was signed but the divorce was registered, Gao took out a loan. Gai X A stated that his position in the bank was not unique, and that when he participated in the processing of Tian's loan, if the entrusted payment object was Gao, he needed to recuse himself, and if he was Gao's elder brother Gao X B, he did not need to recuse himself. This circumstance, combined with the fact that Tian was entrusted to pay to Gao X B after handling the loan, shows that Gai X A, as a bank staff, circumvented the relevant regulations of the bank in the process of handling the loan.
Gai Moujia stated that his salary was about 6,000 yuan per month, and his daughter's training fees and other expenses were mostly borne by Gao.
Question: Is Gao's loan a joint debt of the husband and wife or a debt of Gao's person?
Case Study: (2023) Zui Gao Fa Min Shen No. 338
Lawyer Yang Qinren's comments,
The legal norm is TXT, and the legal operation is EXXE. You can't understand TXT, but you have to know EXE.
According to this case, the court found that the joint debts of the husband and wife met the following conditions:
First, in terms of time, when the loan is incurred, the two parties are in marriage (without registration, it is not a divorce);
Second, if one party borrows money in his own name but causes the other party to benefit, it is presumed that the other party knows and approves of it;
Third, most of the expenses for the children are borne by the borrower, so it is regarded as acting on the husband and wife living together.
The Court held that
The main issue in the retrial review of this case is: whether the loan involved in the case is a joint debt of the husband and wife of A and Gao.
Article 3 of the Interpretation of Marital Debts stipulates that "if a creditor claims rights for a debt incurred by one of the husband and wife in his or her own name during the existence of the marital relationship in excess of the daily needs of the family on the ground that it is a joint debt of the husband and wife, the people's court shall not support it, unless the creditor can prove that the debt was used for the husband and wife's common life, joint production and operation, or based on the expression of the common intention of the husband and wife". According to the ascertained facts in this case, although Gai Moujia claimed that he and his spouse Gao had a discordant relationship and signed a divorce agreement in 2012, the two parties did not register their divorce until 2019 and remarried in 2020, and the two parties were still in the marriage period when the loan involved in the case occurred. In the questioning organized by this court, Gai X A stated that his position in the bank was not unique, and that when he participated in the handling of Tian's loan, if the entrusted payment object was Gao, he needed to recuse himself, and if he was Gao's elder brother, Gao X B, he did not need to recuse himself. This circumstance, combined with the fact that the entrusted payment object after Tian handled the loan was Gao X B, shows that Gai X A, as a bank staff, circumvented the relevant regulations of the bank in the process of handling the loan, so the second-instance trial found that Gai X A was aware of and actively contributed to Gao's loan, and it was not improper. At the same time, Gai Moujia stated in the inquiry that his salary was about 6,000 yuan per month, and his daughter's training fees and other expenses were mostly borne by Gao, so it was not improper for the second-instance trial to determine that Gai Moujia's family had obtained corresponding benefits due to the flow of borrowed funds. Based on this, it was not improper for the second-instance trial to determine that the loan involved in the case was a joint debt of the husband and wife of Gai X A and Gao X and to order both parties to jointly bear the responsibility for the return. As for the non-application of the section of the Interpretation on Marital Debts in the second instance, there was an inaccurate application of law, but the judgment was correct.
