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How many cases can be brought back by the “new explanation” of the joint debt of husband and wife?
时间:2019-01-07 查看:123 次

On the 17th day of 2018, the Supreme Court suddenly issued the “Interpretation of the Supreme People's Court on Issues concerning the Application of Law in the Trial of Cases Involving Marital Debt Disputes”, which took effect immediately on the second day of the publication, and changed the tradition of giving the society a certain adaptation period after the announcement of the new judicial interpretation,which shows that the urgency of early application has reached the point of “Time waits for no man and seize every minute ”, causing widespread concern both inside and outside the circle.


1.Immediate Effect


Although there are only three short paragraphs except for the date of implementation, it is no exaggeration to say that such interpretation can help many couples whose families have broken down to escape the huge debts carried by the other party’s malicious or improper debts, preventing loss of love while being in debt. On the morning of the 18th day, the Hunan Ningxiang Court applied this judicial interpretation and concluded a case involving a debt dispute between husband and wife. Mrs. Zhou owes more than 20 million debts on her own. The creditors sued Mrs. Zhou and her husband, but he can’t effectively prove that the debts incurred jointly by the husband and the wife during their married life. Therefore, the judgment was made in court that Mrs. Zhou should pay off the debts on her own. The issue of this interpretation has become the focus of all society. The official report is full of energy, and folk criticism is full of compliments. As the person in charge of the First People’s Court stated in the interview, the new interpretation focused on solving outstanding problems and responding to social concerns, which were formulated through repeated argumentation.


2.Sequel worth discussing


As for the case which is still under trial or the document which has not yet entered into force after the case was closed, one party of the spouse may be exempted from the repayment obligation because of the application of the new law, but it is uncertain whether the innocent party can change the situation when the debs has been consciously performed by the party or enforced by the courtor whether the new law can be applied to the past things. This is the issue of legal retroactivity.


(1)What is the principle of non-retroactivity


As is well-known,non-retroactivity is a normal state in the implementation of the new law and a basic principal of rule of law. In other words, today's rules cannot be used to constrain yesterday's behavior. If the act is legal according to the law at that time, but is illegal under the new law, and the implementation of the new law can go back and evaluate the historical behavior that has occurred, this will make everyone feel at a loss. No one knows what legal consequences they may face in the future even now I can face the world and shout out: I am a law-abiding citizen! Therefore, the new law is not retroactive in principle. For creditors who have already obtained the effective documents, the husband and wife will certainly have more guarantees for repayment. They can choose to execute the property of one or both parties. If they suddenly overturn the previous judgment or ruling and become a single debtor, the creditors will be a passive one even without a chance to get paid.

 

(2)Valuable opportunity


Then, whether the party that is "in debt" will not have a single chance? Let us look at the interpretation of the person in charge of the Supreme Court. On January 18th, the People's Court Daily published the principal of the Supreme Civil Court’s answer to reporters' request, which states that before the implementation of the Interpretation, the case after reviewed is indeed a case in which the facts are unclear, the law is applied incorrectly, and the result is obviously unfair. The people's court will uphold the principle of seeking truth from facts and correcting mistakes in accordance with the principle of being highly responsible to the people and will immediately correct it. That is to say, according to the provisions of the new law, the court can take the initiative to correct the mistakes, and the relevant cases can be re-examined. Please cherish this hard-earned chance! However, in the process of correcting mistakes, can the parties actively intervene, and how is the relevant substantive law and procedural law regulated?


3.In-depth study


(1)Retrial and protest procedures



First,how to start the retrial process. Article 198 of the Civil Procedure Law stipulates that the court may initiate an error correction procedure ex officio, Article 199 stipulates that the parties need to apply for a retrial process on their own initiative. Obviously, if the court actively corrects the mistake, it will also rule that the case will be immediately suspended. It can effectively prevent the parties from falling into the various difficulties of the person being executed and can prevent the possibility that the property will be disposed by force and difficult to recover the loss. In addition, it should be noted that, in principle, the application for retrial should be filed within six months after the judgment or ruling takes effect. It can be seen that it is difficult for the parties to apply for re-examination of the documents whose effective date has been more than six months. Many previous cases have no active "turning over" opportunities and can only rely on the court to correct the mistakes.


Second, how to start the protest procedure. In addition, according to Article 208 of the Civil Procedure Law, the procuratorate finds one of the 13 statutory circumstances for retrial of the Civil Procedure Law, it shall offer a protest or inspection recommendation in accordance with its authority. If the party initiates a retrial application and there are three cases in which the court rejects the application, fails to make a ruling on the retrial application and re-trials the ruling, and the ruling has obvious errors, you may choose to apply for procuratorial advice or protest against the procuratorate. Under the background of strengthening the judgement and enforcing supervision of the procuratorate, it is an important approach of right relief.


(2)How to do the recovery execution


After untold hardships,the original instrument was finally changed or withdrawn, but the case has been executed, the money has been taken away, the car has been sealed, the house has been sold, and the key blacklist is also there. Don’t know what to do now. This involves recovery execution, in simple terms, is to return to the state before the execution.


First look at the legal provisions. Article 233 of the Civil Procedure Law stipulates that “Where, after completion of enforcement, the judgment, ruling or any other legal document on which enforcement is based is revoked by a people's court for any errors, the people's court shall issue a ruling on the property which has undergone enforcement to order the party which has acquired the property to return the property; and if the party refuses to return the property, the people's court shall conduct enforcement.” In addition, Article 109 of Provisions of the Supreme People's Court on Several Issues Concerning the Implementation of the People's Court (Trial) regulates that In or after execution, if the legal documents to be executed are revoked or changed by the people's court or other relevant organs, the original enforcement agency shall, in accordance with the provisions of Article 214 of the Civil Procedure Law, apply for ex officio according to the parties. In accordance with the new legal instrument in force, a ruling on the implementation of the reversal shall be made, and the original application executor shall be ordered to return the property acquired and its asphyxiation. If it refuses to return, it will be enforced. The execution of the revolving shall be reopened and the relevant provisions of the enforcement procedures shall apply. Article 110 stipulates that When recovery execution, if the target object that has been executed is a specific object, it should be returned. If the product cannot be returned, it can be offset by the price.


Second, look at the problems that exist. The above provisions are very systematic and clear on the implementation of the recovery execution, but in combination with the careful analysis of judicial practice, it can still be seen that it has two problems. First, the subject which should return the property is different. The People's Prosecution Law stipulates that the person who acquired the property should return the property, but the enforcement regulations require the applicant to return it. In practice, if bank deposits are deducted and the due claims are “cut out” by the court, because the person who acquired the property is in the same position as the applicant, the applicant should be ordered to return the same amount of money plus the interest for the period. But the problem is that if the stock under the name of the executor is forcibly sold, the vehicle and the house are auctioned according to law, and the person who actually acquires the property is not the executor. Who should bear the responsibility for returning? If the vehicle or house is treated as a specific item, should the purchaser of the house return it? However, the person who obtains the ownership of the stock or the house according to the court's enforcement of the auction or the sale procedure is in good faith and completely legal, it is impossible to return the stock or the house to the enforced person, and only the applicant who has obtained the auction of the property will return the money. Second, the actual loss of the person being executed is difficult to make up according to the existing regulations. Even if the applicant returned the money, the Moutai shares held by the innocent executor had already “suddenly rushed to the sky”, and the sale of the house at a discounted price had losses, and then the house price rose again, causing the price of disposing the property derogated and unlikely to enjoy the value-added part. These losses cannot be drawn conclusion from the aforementioned provisions, and are important problems encountered in the implementation of the revolving.


Finally, look at possible means of recourse. According to the foregoing provisions, the recovery execution may be initiated by the party's application or the execution of the court's ex officio, but the court has too many cases and is lack of manpower, the judge has lots affairs, and the revocation of legal documents are often not promptly known. Therefore, it is better for the innocent enforcer to submit an application for execution of the transfer and lists detailed request according to the specific circumstances of the property loss. For example, the applicant is required to immediately return a certain amount of deducted money and pay interest according to the same period of interest rate from the beginning of a certain year to the date of actual return under the standard of the People's Bank of China; Immediately lift the seizure measures for the vehicle with the license plate number xxx; immediately stop the auction measures for the certain house, and ask the applicant to bear the housing evaluation fee and the application execution fee. When encounter the large loss caused by the forced auction, the author believes that according to the legal spirit of the implementation of the recovery system, that is, to restore the identity, fill in the legislative intent of the loss, and require the applicant to bear certain losses within a reasonable range, or consider applying for state compensation. Of course, this may in turn affect the enthusiasm of the court to take the initiative to correct the mistakes and is unwilling to re-examine the original case ex officio and even stop the retrial application of the executed person.


If the court officially initiates the execution of the recovery execution procedure, it still needs to re-establish the enforcement case number based on the repealed or changed legal documents, issue a written ruling, and list the original applicant or the person actually acquiring the property as the executor,list the person who is executed in the original case as the executor of the application. This reversal of identity is also a reversal of life. After all, the law is fair, and justice will be realized!



Ming Kun Fan

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