If the husband and wife have debt, the spouse has several repayment behaviors to determine the husband and wife debt

Referee

The husband and wife as a borrower borrowed from the lender in their personal name. The debt is not necessarily connected. Without other evidence proof of the lender (creditors), the people's court should not support the joint debt of the borrowers of the borrowing debt department in the borrowing debt department, thereby asking the claims of both husband and wife to pay back.

The Supreme People's Court of the People's Republic of China

civil amibitration

(2021) The Supreme Law Civil Shen Shen No. 2196

The applicant of the retrial (the plaintiff of the first instance, the appellant of the second instance): Qin Hong, male, Han nationality, lived in Donghu District, Nanchang City, Jiangxi Province.

Entrusted litigation agent: Chen Kai, a lawyer of Hainan Oriental Guoxin Law Firm.

The respondent (defendant in the first instance, appellant in the second instance): Xiong Shanshui, male, Han nationality, lived in Qingshan Lake District, Nanchang City, Jiangxi Province.

The respondent (the defendant in the first instance, the appellant in the second instance): Wan Meizhen, female, Han nationality, lived in Qingshan Lake District, Nanchang City, Jiangxi Province.

The applicant Qin Hong, the applicant of the retrial, and the respondent Xiong Shanshui and the Wan Meizhen civil lending disputes. Essence The court formed a collegiate panel to review the case in accordance with the law, and the review has ended.

Qin Hong applied for a retrial stating that the case in accordance with the provisions of Article 20, 6, and 11 of the Civil Procedure Law of the People's Republic of China, the main facts and reasons should be re -trial: (1) This case cannot be divided into divided into division For two issues. The bank transfer voucher submitted by Qin Hong proves that when the two parties have not settled the principal and interest of 25.5 million yuan from October 2014 to December 2014, because Qin Hong questioned Xiong Shanshui's repayment ability, Xiong Shanshui proved to prove that he still repaid himself. On March 25, 2015, the ability to transfer to Qin Hong was 26.3 million yuan. The money immediately returned to Xiong Shanshui account. Obviously, it was not a real transfer. The two parties did not form a new loan. (2) The loan should be borrowed on interest. The borrowing relationship between the two parties in May 2014 is interest -borrowing. Although there is no borrowing agreement and an agreed borrowing interest rate, Xiong Shanshui's bank vouchers who transfer interest paying interest are sufficient to prove that the fact that the two parties have agreed with the borrowing interest. Qin Hong submitted from July 2015 to June 2018, a total of 10.8 million yuan of bank transfer vouchers paid by Xiong Shanshui proved that Xiong Shanshui clearly stated that three of them had a total of 2 million yuan, and the others should be interest payment. Moreover, Qin Hong should not return to the revenue of income while undertaking the risk of borrowing, and violates normal life. (3) The borrowing of the case shall be the joint debt of the husband and wife. The bank transfer voucher submitted by Qin Hong reflects that Wan Meizhen has multiple repayment records. Therefore, the borrowing is used for the joint operation of the husband and wife. It belongs to the joint debt of the husband and wife and should be repaid together. (4) The court of the original trial had a question of super prosecution request judgment. In the case of clear evidence to prove that and the court of the original trial determined that the presence of borrowing interest in the first stage, the continuous borrowing behavior was identified as a new loan, and on the grounds of Qin Hong's advocacy, the "Supreme People's Court on trial on trial Article 25 of the provisions of crowds of civil loan cases (hereinafter referred to as civil lending judicial interpretations) stipulates that it is improper. Qin Hong accused Xiong Shanshui to repay the principal and interest from October to December 2014 with a continuous borrowing behavior. Different amounts of borrowing relationships are tried at the same time, exceeding the request of litigation, and lack of legal basis.

The court's review believes that (1) whether it is divided into two phases. From the time of the case, the case can be identified as two payments. There are many borrowings between Qin Hong and Xiong Shanshui. On October 24, 2014, October 27, 2014, and December 5, 2014, Qin Hong transferred 5 million yuan, 19.5 million yuan, and 1 million to Xiong Shan. Yuan, during this period, until March 25, 2015, the outsider Zhong Yan and Xiong Shanshui transferred to Qin Hong's transfer to Qin Hong, which was obviously more than the money borrowed from Qin Hong from Xiong Shanshui. Xiong Shanshui had the intention of repaying principal and interest. And the SMS records on November 26, 2014 can also prove that the loan of this time period should be interest -borrowing. Xiong Shanshui's transfer to Qin Hong 26.3 million yuan on March 25, 2015 should actively repay the aforementioned debt. On March 27, 2015, Qin Hong once again transferred to Xiong Shanshui 25.3 million yuan. The payment time of 10,000 yuan took place within three days after Xiong Shanshui repayment 26.3 million yuan. It was impossible to determine that the loan of March 27, 2015 continued to increase from October to December 2014. The court of the original trial divided the borrowing of both parties into two phases. (2) Interest on the second phase of the case. Qin Hong did not provide evidence to confirm that the two parties agreed on the interest on the period, although the 10 funds paid by Xiong Shanshui from June 2018 from July 2015 to June 2018 were "repaid the principal". The payment of the other 7 payments should be directly inferred to repay interest or interest. The Jiangxi High Court based on the fact that the borrowing and borrowing period of March 27, 2015, which was checked in the trial, was three months, and in accordance with the provisions of Article 25, paragraph 2 (22 of the civil lending judicial interpretation, it was determined that the borrowing period was not interesting to borrow the borrowing period. Nothing. At the same time, because Xiong Shanshui failed to repay in time, the Jiangxi High Court requested Xiong Shanshui to pay Qin Hong's overdue interest to the period of overdue interest in Qin Hong's occupation period. (3) Regarding whether to constitute the common debt of husband and wife. Xiong Shanshu borrowed from Qin Hong in his personal name. Qin Hong only used several repayment behaviors of Wan Meizhen to think that the debt -related debt was used for the joint operation of the husband and wife. Because the repayment behavior was not necessarily connected with whether the husband and wife's common debt were constituted, there was no other other in Qin Hong. In the case of evidence, it cannot support its claims. (4) Ask for a decision on whether there is an exception. Qin Hong's lawsuit requesting Xiong Shanshui to pay interest is the overall complaint on the long -term borrowing relationship. The court of first and second instance courts based on the inconsistency of the interest on the two parties before and after the two parties found that the interest on interest was inconsistent. They are all within the scope of the lawsuit request of repayment interest, and the identification of interest standards on interest standards is not a super -litigation request judgment. In summary, Qin Hong's retrial application does not conform to the situation stipulated by Article 22 of the Civil Procedure Law of the People's Republic of China. In accordance with Article 204 of the Civil Procedure Law of the People's Republic of China, the "Explanation of the Supreme People's Court on Application & LT; Civil Procedure Law & GT; The rules are as follows:

Rejected Qin Hong's retrial application.

Judgment Chief Xue Guizhong

Judge Wang Jun

Judge Du Weike

April 25, 2002

Judge Assistant Ye Kangxi

Secretary Wang Ting

Source: civil trial, Shandong Gaofa

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