On May 15, 2024, the "Ask the Law in Hunan" column of the red network received a total of 89 replies from lawyers, and the main areas of consultation were child support, contract validity, civil dispute compensation, etc. The enthusiastic lawyers mainly include: Chen Siyu of Hunan Hongrui Law Firm, Yi Liang of Hunan UnionPay Law Firm, Zhou Bo of Hunan Tongcheng Law Firm, and Yu Jin of Hunan Dakun Law Firm. Lawyer Response Picks 1
After separation, if one party does not pay any fees to the child, who is the burden of proof?
2
If someone else's car has been scraped but it has been repaired, is it reasonable for the other party to ask for depreciation?
3
Are handwritten paper contracts legally binding?
4
The other party made the first move, and when I returned the hand, I injured someone and was hospitalized, am I fully responsible?
5
Should I return the expenses during the relationship after the breakup?
6
The man pays a down payment to buy a house in the woman's name, and the loan is repaid by the woman, who owns the house after the divorce?
01 Changde netizens asked:
After separation, if one party does not pay any fees to the child, who is the burden of proof?
Chen Siyu, a lawyer at Hunan Hongrui Law Firm, answers:
Hello, according to the provisions of the Civil Procedure Law and its relevant interpretations, the parties have the responsibility to provide evidence for their own claims. Parties shall provide evidence to prove the facts on which their own litigation claims are based or on which they refute the other party's litigation claims, except as otherwise provided by law. Where a party fails to provide evidence or the evidence is insufficient to prove its factual assertion before a judgment is rendered, the party who bears the burden of proof shall bear the adverse consequences. Therefore, if you claim that the other party did not pay any of the child's expenses, if the other party claims to have paid the relevant expenses, it is up to the other party to prove their factual claim.
Links to the law:
Article 67 of the Civil Procedure Law of the People's Republic of China: Parties have the responsibility to provide evidence for their own claims.
<中华人民共和国民事诉讼法>Article 90 of the "Supreme People's Court's Interpretation on Application" A party shall provide evidence to prove the facts on which its own litigation claims are based or the facts on which the other party's litigation claims are based, except as otherwise provided by law.
Where a party fails to provide evidence or the evidence is insufficient to prove its factual assertion before a judgment is rendered, the party who bears the burden of proof shall bear the adverse consequences.
02 Changsha netizens asked: I scraped someone else's car and took him to fix it, but the other party asked me to compensate for depreciation, should I be compensated? If the car is repaired, do I have to pay for depreciation?
Hunan UnionPay Law Firm
Lawyer Yi Liang answers:
Hello, depreciation is not covered by the statutory compensation. Except in special circumstances such as unsold new cars, you may be required to bear a portion of the depreciation expense.
Links to the law:
Article 12 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases of Compensation for Damages in Road Traffic Accidents" Where a party requests compensation from the infringer for the following property losses caused by a road traffic accident, the people's court shall support it:
(1) The cost of repairing the damaged vehicle, the loss of the items contained in the vehicle, and the cost of rescuing the vehicle;
(2) Due to the loss or irreparability of the vehicle, the replacement cost of the vehicle is equivalent to the value of the damaged vehicle at the time of the traffic accident;
(3) Reasonable suspension losses caused by the inability to engage in corresponding business activities for vehicles engaged in cargo transportation, passenger transportation and other business activities in accordance with the law;
(4) The reasonable expenses of the usual alternative means of transportation incurred by non-commercial vehicles because they cannot continue to be used.
The above is only the lawyer's personal opinion and is for reference only.
03 Zhangjiajie netizens asked: When I rented a house, I told the landlord that I would only rent for half a year, but because the contract was an electronic contract, it was written for one year and could not be changed, so I said to sign a paper half-year contract. Half a year later, I quit the rent, they didn't admit it, saying that I didn't rent for a full year and couldn't return the deposit to me, what should I do?
Hunan Hongrui Law Firm
Mr. Chen Siyu answers:
Hello, if you state that the handwritten paper contract is a lease contract signed between you and the landlord, it should be deemed that you and the landlord have agreed to change the original lease term, and the lease contract will be terminated after you have rented for half a year, and the landlord shall refund the rental deposit to you if there is no breach of contract. It is recommended that you negotiate further with the landlord, and if the negotiation fails, it is recommended that you apply to the local community for judicial mediation or claim rights against the landlord through legal channels.
Links to the law:
Article 509 of the Civil Code of the People's Republic of China: The parties shall fully perform their obligations in accordance with the agreement.
The parties shall follow the principle of good faith and perform obligations such as notification, assistance, and confidentiality in accordance with the nature, purpose, and transaction habits of the contract.
04 Changsha netizens asked:
When someone had a dispute with me, the other party did it first, and in the process of returning the hand, the other party was hospitalized. Later, the police called the police, and the police asked me to pay all the medical expenses of the other party's hospitalization, and I had to pay thousands of yuan, so the other party was not responsible at all?
Hunan Tongcheng Law Firm
Lawyer Zhou Bo answers:
Hello, where a dispute arises over trivial matters, and both parties are unable to exercise restraint and a fight is triggered, and the party at fault makes the first move and the means are obviously excessive, or where one party makes the first move and continues to infringe despite the other party's efforts to avoid conflict, and the party who fights back causes harm to the other party, it shall generally be found to be legitimate defense. However, the conditions for determining justifiable defense are high, and it cannot be ruled out that it may be characterized as mutual assault. Therefore, your question should be analyzed on a case-by-case basis.
Links to the law:
The Guiding Opinions of the Supreme People's Procuratorate and the Ministry of Public Security on the Proper Handling of Cases of Minor Injuries in Accordance with Law (issued on December 22, 2022, Gao Jian Fa Ban Zi [2022] No. 167) (9) accurately distinguish between legitimate defense and mutual assault type intentional injury. People's procuratorates and public security organs should adhere to the principle of unifying subjectivity and objectivity, comprehensively examining objective circumstances such as the cause of the case, whether there was fault for the escalation of the conflict, whether a murder weapon was used or was prepared to be used, whether obviously disproportionate violence was used, and whether others were gathered to participate in the fight, to accurately judge the criminal suspect's subjective intent and the nature of his conduct. Where a dispute arises over trivial matters, and neither party is able to exercise restraint and a fight is triggered, where the party at fault takes the lead and the means are clearly excessive, or where one party takes the lead and continues to infringe despite the other party's efforts to avoid conflict, and the party who fights back causes harm to the other party, it shall generally be found to be legitimate defense. Where the other party is intentionally provoked to carry out unlawful offense, taking the opportunity to harm the other party, it is generally not found to be legitimate defense.
05 Changsha netizens asked: My boyfriend and I have been in love for a year, the maximum amount of transfer is 2,000 yuan, the others are eating takeaway together, and the water and electricity bills for living together are all paid by me, after breaking up, I asked to return the money he gave, a total of 20,000 yuan, including joint consumption, don't I break the law?
Hunan Dakun Law Firm
Lawyer Yu Jin answers: It is a common social phenomenon that men and women have some small amounts of funds with each other during their relationship, but once they break up, disputes often arise because of these financial exchanges. Whether the party who paid the funds can claim a return depends on the determination of the nature of the funds. In judicial practice, the determination of the nature of such funds often involves legal issues such as bride price, private lending, and general gifts. For example, to determine whether a sum of money is a bride price or a general gift during a relationship, it is subjectively to see whether the parties are for the purpose of marriage, and objectively to consider factors such as the type of payment, whether the payment method is customary, the amount of property to be paid, and the economic status of the payer. According to your statement, the nature of the funds you have exchanged in the case is most likely not a bride price, but more like a general gift during the relationship, and the gift has been completed, and the giver has withdrawn the gift, which has no basis in law, and the woman does not need to return it (of course, the woman's voluntary return is another matter). As for whether the husband claims that the exchange of funds between you is a private loan, it is up to the man to provide evidence to prove whether you have expressed the intention to borrow, and further analysis should be made based on the evidence. 06 Changde netizens asked: The man made a down payment, but the name was only written on the woman, because the woman was qualified for the first suite, and the man's qualification for the first house was gone. How do you count that? Whose house is divorced?
Hunan Hongrui Law Firm
Mr. Chen Siyu answers:
Hello, the property acquired during the marriage is the joint property of the husband and wife and belongs to the husband and wife. If your house is purchased after marriage and the mortgage is repaid after marriage, it is the joint property of the husband and wife.
If there is still an outstanding mortgage on the house at the time of divorce, there are several ways to deal with it:
One can be divided by mutual agreement, where the negotiated house is owned by one party, and the party acquiring the house needs to pay the other party the discounted amount of the common property portion of the house and continue to repay the remaining loan. On the other hand, if both parties are vying for a house, they can use the method of bidding, and the one with the highest price wins; The highest bidder will take ownership of the house and assume the remainder of the loan.
However, the party acquiring the house needs to pay the other party the amount of the discounted portion of the joint property of the house. If both parties do not want the house, they can apply to the court to auction the house and divide the house money to repay the loan.
Links to the law:
Article 1062 of the Civil Code of the People's Republic of China: The following property acquired by husband and wife during the existence of their marital relationship shall be the joint property of the husband and wife and shall be jointly owned by the husband and wife:
(1) Wages, bonuses, and remuneration for labor services;
(2) Income from production, operation and investment;
(3) the proceeds of intellectual property rights;
(4) Inherited or donated property, except as provided for in item 3 of Article 163 of this Law;
(5) Other property that shall be jointly owned.
Husband and wife have equal rights to dispose of joint property.
Article 76 of the "Supreme People's Court's Interpretation (1) on the Application of the Marriage and Family Section of the Civil Code of the People's Republic of China": When the parties are unable to reach an agreement on the value and ownership of the house in the joint property of the husband and wife, the people's court shall handle it in accordance with the following circumstances:
(1) Where both parties claim ownership of the house and agree to obtain it through bidding, it shall be permitted;
(2) If one party claims the ownership of the house, the appraisal agency shall evaluate the house according to the market price, and the party that obtains the ownership of the house shall give the other party corresponding compensation;
(3) If neither party claims ownership of the house, the house shall be auctioned or sold according to the application of the parties, and the proceeds shall be divided.
Source: Red Network "Ask Hunan" column Editor: Peng Mengying