3354 Shantou Branch of China Construction Bank v. Zheng Credit Card Dispute.
Some debts that do not exceed the daily needs of husband and wife's family are recognized as husband and wife's debts because the other spouse fails to provide evidence to defend, while those that exceed the daily needs of the family are not recognized as husband and wife's debts because the bank fails to provide evidence to prove that they are used for husband and wife's life, production and operation or their original intention.
The facts of a legal case
Appellant (plaintiff in the original trial): Shantou Branch of China Construction Bank Co., Ltd. (hereinafter referred to as "Shantou Branch of CCB").
Appellee (defendant in the first instance): Zheng.
Appellee (defendant in the first instance): Wang Yiying.
On May 24th, 20 17, Zheng applied to open a credit card at the intelligent teller of CCB with a credit line of 24,000 yuan. Zheng's credit card consumption records show that most of his single consumption amount does not exceed 1000 yuan, including supermarkets, restaurants, hardware stores, tea houses, restaurants and so on. 20 17 On August 3rd, Zheng Jin applied to Shantou Branch of China Construction Bank for the installment business of Longka credit card. Upon approval, Shantou Branch of CCB issued a loan of 90,000 yuan to Zheng in 36 installments, with a handling fee rate of 0.4% and a monthly handling fee of 360 yuan. This sum was transferred to Zheng's debit card on August, 2065438 17. On August 18, Zheng transferred RMB 60,000 from his debit card account to Wushan Street Community Health Service Center in Tianhe District, Guangzhou, and RMB 30,000 to Heping Jewelry Store in Chaoyang District, Shantou City. As of 20 18 and 14, Zheng Jin Dongshang owed the installment principal of 80,000 yuan, the consumption principal of 2 1 0,018.70 yuan, the interest of 4,289.64 yuan, the penalty of 4,608.05 yuan and the handling fee of 165438.
Zheng He is husband and wife. Shantou Branch claims to be jointly and severally liable for Zheng's arrears.
Referee
The court of first instance of longhu district Court in Shantou held that Zheng Jin Dongfang borrowed money from Shantou Branch of China Construction Bank and failed to repay the debt in full and on time, which was a breach of contract. Therefore, Zheng should repay the installment principal of 80,000 yuan, the consumption principal of 2 10 18.70 yuan, the interest of 4,289.64 yuan, the penalty of 4,608.05 yuan, the handling fee of1/520 yuan, * *12/kloc-0. The evidence submitted by Shantou Branch is not enough to prove that Zheng's loan is used for husband and wife's * * * life and * * * production and operation, so it does not support his claim that Zheng should be jointly and severally liable for repayment.
The second trial of Shantou Intermediate People's Court held that according to Articles 2 and 3 of the Interpretation of the Supreme People's Court on Relevant Issues Concerning the Application of Laws in the Trial of Cases Involving Husband and Wife Debt Disputes (hereinafter referred to as the Judicial Interpretation of Husband and Wife Debt), Zheng's credit card arrears in this case include two parts, one of which is the consumption principal of 2 1, 0 18.70 yuan and interest of 4,289.64 yuan. The other part is installment principal 885. According to the credit card transaction record of Zheng submitted by Shantou Branch of China Construction Bank, from the point of view of consumption location and consumption amount, Zheng's consumption amount did not exceed his family's daily needs, and the consumption occurred during the marriage relationship between Zheng and Zheng. Therefore, Zheng's consumption principal of 265,438 yuan+0,065,438 yuan +08.70 yuan and interest of 4,289.64 yuan should be recognized as the joint debt of husband and wife, and he should be jointly liable for the debt of 25,308.34 yuan. As can be seen from Zheng's bank card records, Zheng received an installment payment of 90,000 yuan on August 17, and transferred it to someone else's account twice the next day. These two payments obviously exceed the daily needs of the family. Shantou Branch of CCB did not provide evidence to prove that the debt was used by Zheng He for his life, production and operation, or based on the consent of both husband and wife. Therefore, this debt should not be regarded as the same debt of husband and wife.
Comment and analysis
The problem involved in this case is whether the debts incurred by one spouse due to credit card arrears can be regarded as the same debts of the husband and wife during the marriage relationship. thorium
Credit card debt is formed during the marriage relationship, and it is recognized as the joint debt of husband and wife according to Article 24 of Judicial Interpretation of Marriage Law (II).
(20 18) Yun 2524 259 1, (20 16) Yun 0302 3833, (20 17) Yun 0 102162.
(20 18) The judgmentNo. Min Chu Yun No.2524 No.259 1 holds that the above-mentioned credit card consumption behavior of unpaid principal occurred during the existence of the defendant's husband-wife relationship, so the debt owed belongs to the two defendants, and the two defendants should bear joint and several liability for repayment. Although the two defendants have registered for divorce in the civil affairs department and their property has been divided, the plaintiff Jianshui Sub-branch of China Bank still has the right to claim rights from the two defendants for the same debts of husband and wife. (20 13) Gao yue fa Shin Min A zi No.901holds that the debts involved belong to the same husband and wife, because the debts involved occurred during the marriage, and the debts occurred before the divorce and before the divorce property debt agreement.
The spouse failed to prove that the credit card debt exceeded the daily needs of the family.
(20 17) Su No.2536, (20 18) Yue No.2932 13 Min Duan.
(20 17) Su No.2536 holds that the debtor's spouse should bear the burden of proof as to whether the debt owed by one spouse in his own name belongs to the same debt of husband and wife. Bank card withdrawal slip, personal settlement application and witness testimony submitted by Kang Yuanyuan in the first and second trials.
It can only prove that Cui Zhengang used143,000 yuan to repay the debts it owed before, but it can't prove that its debts are Cui Zhengang's personal debts, and the rest was not used for the husband and wife to live together.
Spouse promises to treat credit card debt as the same debt of husband and wife and bear the repayment responsibility.
(20 18) Jiangxi 0 102, 34 12, (20 18) Jiangxi 0830, 92 1.
(20 18) Jiangxi 0 102 Early Republic Judgment No.34 12 holds that the defendant Xu Huoxiu, as the spouse of the defendant Xia, promised to take the credit card debt as the joint debt of husband and wife, and this promise is legal and valid. Therefore, the plaintiff's request for the defendant Xia and Xu Huoxiu to return the principal, pay interest and realize the legal expenses of creditor's rights is in line with the agreement of both parties and legal provisions, and should be supported.
Spouses have the same signature on the mortgage contract and know the credit card arrears.
(20 18) Jiangxi 068 1 early Republic of China 1070, (20 18) Guangdong 1702 early Republic of China 2605, (20 18) Guangdong/kloc.
(20 18) The judgment of Gan 068 1 Republic of China 1070 holds that the above-mentioned debts occurred during the marriage relationship between the two defendants, and the Supplementary Mortgage Agreement signed by the plaintiff and the defendants Qiu Lianduo and Mo Xizhi was established and effective, which is enough to prove that the defendant Mo Xizhi knew about the above-mentioned credit card overdraft behavior and agreed to repay it.
Spouses are the same borrower.
(20 18) Guangdong 1702 Minchu No.3706, (20 18) Su 1323 Minchu No.8526, (20 18) Inner 010.
(20 18) Guangdong 1702 the judgment No.3706 at the beginning of the Republic of China holds that the above-mentioned credit card overdraft debt occurred during the relationship between the two defendants, and the defendant Li Jinfeng was the * * * borrower of the defendant Zhang Chengzhi's application for installment loan for decoration, so the credit card overdraft principal and interest in this case should be owned by the defendants Li Jinfeng and Zhang Chengzhi.
The court found that credit card consumption was used to buy household necessities or husband and wife live together.
(20 18) Guangdong 1704 Early Republic of China 1062, (20 18) Jinminshen199, (20 18).
The judgment (20 18) Guangdong 1704 early Republic of China 1062 holds that according to the details of the credit card transaction, the defendant Li Luonai used the card to withdraw cash from the ATM of the bank for many times, and bought household goods in health care places and shopping malls for credit card consumption. The debts involved were caused by non-repayment and occurred in the marriage of the defendant Li Luonai and Liang Xiting. (20 18) In the judgmentNo. 1 199, it is considered that it is not improper for the court of first instance to consider the credit card record information as a joint debt with the husband and wife, considering that it can prove that the debt is used for the life, production and operation of Hehe. (20 18) The judgment No.2461of Gan 07 Min Zhong holds that according to the transaction flow submitted by Quannan Sub-branch of Agricultural Bank of China in the first instance, the debt in this case did not exceed the daily needs of the family in terms of consumption place and consumption amount. (20 18) The judgment of Su 12 Minzhong 1488 holds that Xinghua Branch of Bank of China has provided evidence to prove that the loan was used to purchase the renovated house of xinghua city Farbing Ceramics Business Department, which is jointly owned by Wei Gebao and Sun.
2. It is not recognized as a typical case of husband and wife sharing debts.
Table 1
serial number
type
typical case
Typical referee reasons
The bank did not provide evidence to prove that the debt involved was used for the daily life of the family, nor did it provide evidence to prove that the debt was used for the life of the husband and wife, the production and operation of the husband and wife, or that it was the same based on the meaning of both husband and wife.
(20 18) Lu 02 13 Early Republic of China 2 16 Early Republic of China 4665434. (20 17) No.3381among the 20 people in Guangdong, (20 18) No.07813053 at the beginning of the Republic of China, and (20 18) No.0303 at the beginning of the Republic of China/kloc-0.
(20 18) Judgment No.46 18 of Guangdong Province held that although the plaintiff provided the marriage registration examination forms of the two defendants as evidence of the relationship between husband and wife, the defendant Wu Zongliang did not sign the application for confirmation, and there was no evidence to prove that the debts involved belonged to the husband and wife. (20 18) Yu 0 106 No.8053 at the beginning of the Republic of China held that the arrears occurred during the marriage relationship between the two defendants, but the money involved was used to buy a car and could not be regarded as being used for the husband and wife to live together, and the plaintiff had no evidence to prove that Li was willing to repay the money involved together with the defendant Tang Pengcheng, so he asked the defendants Li and Tang Pengcheng to repay it together.
If the spouse is not the other party to the contract, according to the principle of relativity of the contract, it will not be supported and will be told to file another lawsuit.
(20 17) Guangdong 197 1 early Republic of China 10858, (20 17) Guangdong 197 1 early Republic of China 7335.
(20 17) Guangdong 197 1 7335 at the beginning of the Republic of China held that although the defendant Liang Yingnan signed in the spouse column of the application for cash installment to confirm his knowledge of the loan, the signature did not have the legal effect of confirming the debt and agreeing to jointly pay off the loan. The parties involved in the Application for Cash Installment are the plaintiff and the defendant Chen Weijian. According to the principle of privity of contract, the rights and obligations of the contract should be limited between the plaintiff and Chen Weijian. Therefore, the defendant Liang Yingnan is not the other party to the contract, and Wangniudun Sub-branch of Dongguan Rural Commercial Bank sued Liang Yingnan for undertaking the contractual obligations under the Application Form for Cash Installment and Silver Pocket in the credit card dispute. This case is a credit card dispute. If the plaintiff's creditor's rights have not been repaid, or if the husband and wife are involved in the same debt, the plaintiff can carry out rights relief through other legal procedures, and our court will not handle this case.
The bank failed to provide evidence to prove that the credit card consumption occurred during the relationship between husband and wife.
(20 18) No.426, Yun28 Minzhong
(20 18) judgment No.426 of Yun28 Minzhong held that the evidence provided by Banna Sub-branch of Postal Savings Bank could not prove that Wang Yongbin and Yu Jinyu were husband and wife when spending money by credit card in Wang Yongbin, and they should bear the adverse consequences of proof.
The court found that credit card consumption is not used for husband and wife to live together.
(20 18) Min03 MinzhongNo. 1385, (20 18) Yun08 Minzhong No.550.
(20 18) CaseNo. 1385, Min 03. It is believed that the consumption content is mainly "building materials wholesale" and "other wholesalers", and basically the monthly consumption amount of "building materials wholesale" and "other wholesalers" is about 30,000 yuan. However, it was overdue less than February 2 15 and February 2 1 day, and the overdue principal, that is, the debt principal of this case, was 24,227.38 yuan, and it was 201June 6544 before it was overdue in June 20/kloc-0. Therefore, considering the consumption of the credit card involved, the debt in this case should not be recognized as an expenditure necessary to maintain a normal family life.
(20 18) The judgment No.550 of Yun08 Minzhong holds that the main consumption directions of land credit cards are furniture, building materials, automobiles, coffee, tea, etc., and their transaction records show the characteristics of large single consumption and frequent monthly consumption. From the experience of daily life, the consumption of credit cards involved should not be considered as necessary to maintain normal family life.
The spouse provided sufficient evidence to prove that the credit card debt was not used for the husband and wife to live together.
(20 18) E 05 MinzhongNo. 1639
(20 18) E 05 Minzhong JudgmentNo. 1639 believes that Wang Qinglong's credit card loan is a debt incurred in his own name during the marriage relationship with zhangyan, which exceeds the daily needs of his family. Zhangyan's certificate from the Health Protection Committee of Longtan Village, Taiping Creek, Yiling District, Yichang City, and zhangyan's married daughters Wang Qinglong and Wang Tianqi's personal certificates can prove that Wang Qinglong's credit card loan was not used for husband and wife to live together.
(two) the main disputes in the trial practice
As can be seen from the above table, the disputes on this issue in trial practice mainly include the following aspects:
First, as can be seen from Table 1 and Table 2, the courts in most areas have dealt with the question of whether the credit card arrears of one spouse belong to the joint debt of husband and wife according to the judicial interpretation of the debt of husband and wife, but at the same time, there are still many local courts that the credit card arrears of one spouse are formed during the marriage, and they are presumed to be the joint debt of husband and wife according to Article 24 of the judicial interpretation. For example, the judgments of some courts in Shandong, Chongqing and Guangdong in item 1 form 1.
Second, the distribution of burden of proof is different. As for whether the credit card debt is used for the husband and wife to live together, and whether the burden of proof is the other spouse or the bank, there are great differences among local courts. For example, (20 1 7) Su No.2536 and (20 18) Yue Di 13 Min Zhong No.2932 in Table12 all think that the spouse of the credit card debtor should provide evidence to prove that the credit card debt is not used for the husband and wife to live together. The reason why item 5 in Table 2 does not belong to the same debt of husband and wife is that the other spouse has provided sufficient evidence to prove that the credit card debt is not used for the husband and wife to live together, and the burden of proof has also been assigned to the other spouse. However, in Table 2 and Item 3, (20 18) Lu 02 13 Min Chu 2 17, (20 18) Xiang 0 104 Min Chu 6262.
Third, local courts have different judgments on whether the amount owed by credit card installment purchase of vehicles is considered as the same debt of husband and wife. (20 18) Gui 1002 Republic of China 1747, (20 18) Gui 1002 Republic of China 295, (20 18) on 0/kloc. However, (20 18) Yu 0 106 Minchu No.8053 and (20 18) Yu 0 106 Minchu No.8054 believe that the arrears occurred during the marriage relationship between the two defendants, but the money involved was used to buy a car and could not be considered as being used for the husband and wife to live together. The bank
Fourth, when determining whether the debt belongs to husband and wife, whether the court should examine the specific use of credit card arrears, there are different opinions in local courts. In the judgments listed in Item 6 in Table 1 and Item 4 in Table 2, the court will review the use of credit card arrears, and then combine whether the arrears are used for husband and wife's * * * life or * * * production and operation to judge whether they belong to husband and wife's * * * debt; Other courts did not review the use of credit card arrears.
It is worth noting that from items 3, 4 and 5 of table 1, many banks have applied the principle of "* * * debt * * *" in practice, such as making the other spouse promise to repay the credit card debt and signing a mortgage contract with the other spouse as the borrower.
(C) ideas to deal with this problem
According to the spirit of judicial interpretation of marital debt, the following aspects should be considered in dealing with such problems:
A, in line with the "XXX debt signed" situation, should be recognized as husband and wife XXX with debt. Article 1 of the judicial interpretation of marital debt clarifies the principle of "* * * debt * * *". On the one hand, this institutional arrangement is conducive to protecting the other spouse's right to know and consent, and can avoid the other spouse's "debt" as much as possible from the source; On the other hand, it can also effectively prevent creditors from suffering unnecessary losses because they cannot provide evidence afterwards. Therefore, the situations listed in items 3, 4 and 5 of table 1 should be considered as the same debt of husband and wife.
Second, when the conditions of "* * * debt * *" are not met, the court should take the initiative to review the use of credit card arrears. If it is mainly used for the daily needs of the family, it should be presumed that the husband and wife are in the same debt. At this time, if the other spouse claims that the debts owed are different from those owed by the husband and wife, it shall bear the burden of proof. We can't cut across the board the range of daily needs of families. We can divide household consumption expenditure into eight categories, such as food, alcohol and tobacco, clothing, housing, daily necessities and services, transportation and communication, education, culture and entertainment, medical care and others, and maintenance and maintenance obligations stipulated in the marriage law, and comprehensively consider the expenditure situation.
Third, if the credit card debt does not meet the "* * * debt mark" and it is found that the credit card debt exceeds the daily needs of the family, if the credit card debt is used for the life of the husband and wife or the production and operation of the husband and wife, it should also be recognized as the debt of the husband and wife. At this time, if the other spouse pleads, it should also bear the burden of proof. It is worth noting that the extension of "husband and wife living together" covers and is greater than "family daily life". The essential feature of "husband and wife living together" is "family interests". If the credit card is owed for the benefit of the family, it should be recognized as a joint debt of husband and wife; If it is not for the benefit of the family, it cannot be considered that the husband and wife are in debt together. As for "husband and wife * * bring production and operation", there are three main forms: one is that husband and wife bring business or invest in * * *; Second, one of the husband and wife is engaged in production and business activities, but both husband and wife enjoy benefits; Third, one or both of the husband and wife are engaged in rural land contracting or individual industrial and commercial operations.
Fourth, regarding the fact that credit cards are in arrears, banks should bear the burden of proof, because credit card consumption records are in the hands of banks.
In short, to deal with such problems, we should strictly implement the provisions of judicial interpretation of husband and wife's debts, and distinguish the nature and use of credit card arrears that do not meet the principle of "signing debts". For the part of the debt that does not exceed the daily living expenses of one spouse's family, if the other spouse fails to provide evidence to defend it, it is deemed that the husband and wife are in debt together; If the bank fails to prove that the debt exceeding the daily living expenses of the family is used for the husband and wife to live together, or the husband and wife express the same meaning, it should not be considered as a husband and wife debt, and it cannot be presumed that all the credit card debts owed by one of the husband and wife are husband and wife debts, or
Case index
(20 18) Guangdong 0507 Minchunuo. 1533; (20 18) Guangdong 05 Minzhong 1 132
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Typesetting: Ma Cong
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