When going through divorce procedures, how are debts and marital property distributed?

After the revised Marriage Law was implemented in 2001, the Supreme People's Court issued two judicial interpretations (hereinafter referred to as "Interpretation (1)" and "Interpretation (2)"), making the current Marriage Law 》Has greater operability. In particular, "Interpretation (2)" (implemented on April 1, 2004) further explains new types of divorce property disputes, including income from property investment, housing disputes, income from intellectual property rights, stocks, bonds, etc. The latest interpretation adapts to the trend of diversified development of personal property and marital property under market economy conditions. However, many judges still report that they are in a state of "crossing the river by feeling for the stones" when handling this new type of cases.

This article intends to conduct a tentative discussion on new types of property disputes such as mortgage housing during divorce, investment and interest disputes, company equity disputes, and intellectual property income based on the latest judicial interpretations. It is hoped that it can Judicial practice has reference value.

1. Divorce disputes arising from houses and cars purchased with mortgages

Currently, disputes over the division of houses or other valuable properties purchased with mortgages account for the majority of divorce assets A considerable proportion of disputes. To solve such cases, we must first define the nature of the legal system of "mortgage" in accordance with legal principles, so that more reasonable solutions can be proposed.

(1) The necessity of exploring the nature of the mortgage system. The mortgage system originates from a type of property security in the equity law of the common law system. It means that the debtor (mortgagor) transfers the ownership of his property to the creditor to guarantee the performance of the debt. The debtor usually continues to occupy the property. When the debt is satisfied, ownership of the property is transferred back to the debtor. If the debtor is unable to repay the debt when due, the creditor will control its exchange value based on its ownership of the mortgaged property, thus ensuring the repayment of the creditor's rights.

However, our country has not yet made qualitative provisions on mortgages in law. In financial practice, a mortgage means that a house buyer mortgages his or her equity under the house sales contract with the real estate agent to the bank. The bank lends money to the house buyer and hands the money to the real estate agent in the name of the house buyer to pay the house price. If the house buyer If the principal and interest cannot be repaid when due, the mortgage bank has the right to change the value of the mortgaged property and give priority to repayment, or the real estate developer can repurchase the house and use the repurchase proceeds to repay the bank's principal and interest.

Academic circles are divided on the nature of mortgages. If it is believed that mortgages are transfer guarantees in nature (Japan named them transfer guarantees when the mortgage system was introduced), it is argued that mortgages and transfer guarantees are essentially methods of transferring ownership as a guarantee for claims.

Some people think that mortgage is a "combination" of rights pledge and mortgage (referred to as "combination theory"); or they think that mortgage is a form of trust, etc.

Among them, the "transfer guarantee theory" and the "combination theory" are more representative.

It is very important to understand the nature of mortgage. If a mortgage is considered to be a transfer guarantee, the ownership of the debtor belongs to the bank before the loan is repaid; after the debt is paid off, the ownership returns to the mortgagor. in the name of the debtor. If the mortgage procedures handled by the parties before marriage are based on the theory of mortgage transfer and guarantee, the ownership belongs to the bank, not to either spouse, until the housing loan is repaid, which obviously complicates the issue. According to the actual operating procedures of mortgage loans of various domestic banks and the "mortgage" house registration procedures, this article is more inclined to believe that mortgage is a combination of rights pledge and mortgage. For houses or other buildings that have not yet been built or are under construction, before the house is completed and the property rights are registered, the home buyer only has a claim to the developer to request the delivery of the house, and setting a pledge for a bank loan with this claim is more in line with my country's current situation. Provisions of the Guarantee Law. When the house is built and the property rights are registered, it turns into using the physical house as a mortgage guarantee for bank loans. Therefore, the mortgage system in mainland my country in practice is different from the mortgage in Hong Kong, Anglo-American law, and the transfer guarantee system in mainland law. There is no link to transfer the ownership of the home buyer, and there is no redemption. process.

Before the Security Law and relevant civil regulations do not provide for a special security system such as mortgage, we can only think of a mortgage as a combination of a pledge of rights and a mortgage, but it cannot be considered to be only a pledge or equivalent to a mortgage.

After clarifying the essence of the mortgage system, and combining the time when the parties handle the mortgage procedures (whether before or after marriage), the source of funds for the down payment, and other factors, we can determine whether the mortgaged house is in the divorce. vesting when property is divided.

(2) Two types of divorce property disputes caused by mortgages. 1.

For mortgage procedures before marriage, the issue of ownership of the property in the event of divorce if the couple repays the loan together after marriage. The first view is that according to the provisions of the Marriage Law, the salary and bonus of one party are the joint property of the husband and wife. Although the house is a pre-marital house pre-sale contract, because the house is used as a residence for the husband and wife, and the joint property of the husband and wife is used to repay the loan, the house should become the joint property of the husband and wife. When divorced, the house should be treated as the joint property of the husband and wife. **Same as real estate deal. The second view is that the Marriage Law clearly stipulates that the pre-marital property of one party is personal property. If one party goes through the mortgage procedures before marriage and obtains the property ownership certificate, it should be considered pre-marital property.

Based on the legal nature of the mortgage analyzed above, the author agrees with the second opinion. The key factors in judging a mortgaged house are the right holder recorded in the house title certificate and the time when the house title was obtained. If the home buyer has obtained the ownership of the house before marriage, and during the marriage relationship only mortgages the ownership of the house to the bank for the purpose of repaying the loan, the relationship between the buyer and the bank will be a creditor's right and a debtor's right. If a couple uses the same property to repay the loan, it only creates a creditor-debt relationship between the couple and does not change the ownership of the house. This is also theoretically consistent with the principle of publicity of real estate. At the same time, the creditor-debt relationship between the bank and the debtor (mortgagor) is based on special trust in credit status. It is consistent with the theory of debt transfer that the debtor does not change because of the marriage relationship. The act of repaying the loan jointly after marriage does not change the nature of the house's personal property. The part of the repaid loan that belongs to one spouse must be returned; the unpaid debt after divorce is still a personal debt.

If one party handles the mortgage procedures before marriage, signs a house pre-sale contract in his or her own name, pays the down payment, and obtains the house ownership certificate after marriage, it should be considered personal property. Because the creditor's rights are specific or antagonistic according to my country's housing pre-sale registration (authentication procedure), the obligee who obtains the ownership of the house from the pre-sale contract is limited to the creditor in the pre-sale contract. The bank's reliance on the creditworthiness of a specific home buyer, that is, the loan debtor (mortgagee), and the property rights are obtained by individuals paying the down payment before marriage. Therefore, in this case, even if the property ownership certificate is obtained after marriage, it should still be considered personal property.

For cases where the property ownership certificate is registered in the name of one party, but the spouse has evidence to prove that he/she also contributed the capital when purchasing the house before marriage, or both parties have an agreement on the property of the purchased house. First of all, it should be recognized as the joint property of husband and wife. When dividing, it should be handled according to the principle of division of joint property. The mortgage loan debt should be the joint debt. Because the capital contribution occurred before the marriage, the non-property registration nominee should provide evidence that his capital contribution was not a gift or a loan.

2.

When divorcing, the issue of ownership of a house that has been mortgaged after marriage but whose property rights are registered in the name of one spouse is very difficult for the judge. The main reason is that the judgment changes the property owner, which means changing the loan repayer. If the bank does not handle the remortgage procedures, the judgment will not be executed. To this end, the court judges also exchanged opinions with relevant bank departments. Judicial officials believe that the judgment of a house to a party other than the registered party is essentially equivalent to changing the debtor, and the consent of the creditor (bank) should be obtained. If the bank does not agree, the judgment cannot be made.

The author believes that under normal circumstances, a house purchased with the joint property of the husband and wife after marriage, although the property title is registered in the name of both husband and wife, is still the joint property of the husband and wife, and the mortgaged house is no exception.

If there is no evidence to prove that the house is mortgaged with personal property, the property should be divided according to the joint property of the husband and wife during divorce, which is no different from a house in the usual sense. There is no theoretical basis for the bank's refusal to handle the remortgage procedures. On the one hand, the remortgage procedure cannot be refused on the grounds that the debtor (nominal repayer) has been changed without the consent of the creditor (bank). According to the above analysis, the actual loan repayers in this type of case during the marriage relationship are the husband and wife, not the nominal property owner or loan repayer on the property ownership certificate. On the other hand, if the property rights of the house are awarded to either party during divorce, it will not affect the credit interests of the bank, and anyone acting as a repayment nominee will not affect the use of the house as a mortgage property to guarantee debts. When making a judgment, the court cannot only use the bank's credit interests as a consideration criterion and award the house to the party with a stronger repayment ability. The need for a house should be taken into consideration, and the judgment should be made based on the principle of protecting the interests of the woman or taking care of the person raising the children. Third, according to the principle that husband and wife are jointly and severally liable for debts incurred during the marriage, the bank can pursue liability from either party to the divorce. According to regulations, even if the court's allocation of credits and debts between husband and wife in the divorce judgment or the divorce agreement between the husband and wife, it will only have internal effect between the divorced parties. A judgment or divorce agreement that determines which party will bear a specific percentage of the remaining debt cannot be used against the creditor (bank). If one party to the divorce bears debts because the joint liability exceeds his or her share of the debt, he or she may seek compensation from the other party. Through the above analysis, the bank's interests have been substantially affected. Therefore, it cannot violate the law, the court's judgment and the agreement between the parties for any reason.

2. Definition of the nature of investment income, property interest and appreciation of personal property in divorce disputes

The "Marriage Law" simply follows the definition of "before marriage" and "after marriage" Using time limits to determine whether property is individual property or joint property of husband and wife cannot solve the problem of income generated from pre-marital property after marriage and the conversion between different property forms. The income generated from pre-marital property after marriage can be divided into two categories according to the theory of civil law: investment income and interest.

(1) Comparison of investment income and interest. Investment refers to economic activities in which economic entities invest economic factors in specific undertakings or fields to obtain expected returns.

Investment is the capitalization of money, and investment income is the residual value generated by capital, which is risky, uncertain and subjective. These characteristics of investment income are in sharp contrast to interest. Yield refers to the income generated through the laws of nature or the provisions of law. The most prominent feature of interest compared with investment is its "regularity". Usually, income can be obtained regularly according to legal provisions or legal relationships. Therefore, compared with investment, rights holders invest less labor and have lower risks. Investment income is no longer a simple appreciation of capital. More physical or mental work participation and greater risks have made both husband and wife have a closer connection with the management of assets, and debts borne in the name of individuals during the marriage relationship will not be subject to special agreement without special agreement. It is also borne by the husband and wife's joint property. The most important reason is that investment involves the investment of human capital by both parties, as well as the greater contribution of one party in housework.

Therefore, if the income generated by a husband and wife investing their personal property in a company or enterprise is obtained during the marriage, the part of the profit generated from the production and operation of the company or enterprise, such as equity dividends, etc., should be treated as such. It is owned jointly by both husband and wife. Interest on bonds purchased with personal property and interest on personal property deposits are statutory interest, and even though they were obtained during the marriage, they should still be considered personal property.

However, the house rent included in the statutory interest should be treated separately. If the property owned by one party before the marriage is managed by the other party because the other party neglected to manage it after the marriage or has no time to take care of it due to time and geographical constraints, or the two parties are actually involved in the management (such as repairs, maintenance, and participation in the negotiation process of the rental contract), Then the rent should be the income of both parties. Compared with deposit interest, house rent is determined by the law of supply and demand in the market and is closely linked to the management status of the house itself.

Therefore, rent is a special kind of interest, and its acquisition often requires more management or labor services. The rental income generated should belong to the husband and wife jointly. However, if it can be proven that a party other than the owner of the house is not involved in the operation and management of the house, the rental income from the house should still be considered personal property. However, if the owner of the house uses the house as real estate to invest in a company or enterprise, the investment income should be treated according to the principle that the investment income is the joint property of the husband and wife.

(2) The issue of ownership of the transformation and value-added part of personal property. The "Marriage Law" simply stipulates that "income earned after marriage" shall be treated as the same property of husband and wife, which is contrary to the basic principles of civil law and economic laws. The mutual transformation between monetary form and material form or other property forms does not change the law of ownership. If one spouse uses deposits before marriage to purchase real estate, gold, antiques, stocks, bonds, funds, etc. after marriage, this does not change the attribute of ownership to individuals. Therefore, proving whether pre-marital or personal property is the source of property acquired after marriage is an important criterion for judging whether it is the joint property of husband and wife. Similarly, premarital or personal property can be converted into other forms of property in addition to money. If real estate, stocks, securities and other properties owned before marriage or individually are transferred or sold, the increased value due to rising market prices should also be considered personal property. Therefore, the ownership of property rights cannot be simply judged by “income obtained after marriage”.

3. Divorce disputes over company shares and operating income

With the development of the economy, company shares and operating income have become the most complicated form of property shared by husband and wife, and are also the most common forms of divorce. The focus of property disputes. Although the "Interpretation (2)" has provisions for shares in a joint stock company and capital contributions in a limited liability company, there are still some omissions.

(1) The right to know of spouses who are not shareholders or non-operators should be stipulated. Due to the imperfection of my country's property registration system and the litigation system of "whoever claims, who shall provide evidence", the non-shareholder or the operator's spouse (usually a woman) who has no prior awareness of property protection cannot provide evidence, making it difficult to obtain a fair division of property. In some families, one party who is not involved in the business often neither cares about nor understands the investment and management of family property. Once a property dispute occurs between husband and wife, it is often difficult to obtain evidence because they cannot produce enough evidence to support their claims. It has become a prominent feature in current divorce property dispute cases. In practice, when the non-business spouse and his or her agent go to some government administrative departments to collect evidence, many departments refuse to access the archive materials on the grounds of protecting the company's trade secrets, and these evidence materials often belong to the non-business owner. The scope of evidence provided by the operator regarding the marital property. When the property of a spouse is in the form of company equity, it exists in the company where one spouse works, and that spouse’s senior management status in the company will make it impossible for the parties and agents to obtain evidence, especially when it comes to the spouse’s position in the company. When it comes to wages, bonuses, profit distribution and property status expressed in equity, it is difficult for non-shareholder parties and their attorneys to obtain relevant evidence from the company. A recent authoritative questionnaire survey showed that more than 80% of wives do not understand the operating status of their husband's company or business.

Lack of understanding of the company's financial status, not only for women, but also for any spouse who is not a shareholder, can easily lead to the embarrassing situation of being unable to prove the company's equity related to the couple's property.

Therefore, it is recommended that legislation give the non-shareholder or non-operating spouse the right to know. The parties have the right to know the property status involving the equity and related operating income of the joint property of the couple. Any administrative department Corresponding cooperation should be provided with relevant units and the company's financial personnel. When allocating capital contributions or dividing corresponding net income based on the company's equity during divorce, the burden of proof should be reversed on the operating party, who must prove the status of the business property or issue asset and liability information. Otherwise, it will be treated as concealing the property of the husband and wife. The concealing party can get less points or no points at all.

(2) Solving the issue of company equity that is not involved in the property division agreement when registering divorce.

Due to the complexity of the property forms involved in the business activities of one spouse and because the law does not give the spouse the corresponding right to know, the spouses may not agree on the company's equity and operating income when they agree to divorce. Does this mean that both parties have reached tacit terms regarding the property? After the couple divorces by agreement, can they file a lawsuit again for omissions?

Article 9 of the "Interpretation (2)" stipulates: "If a man and a woman regret the issue of property division within one year after they agree to divorce, and request to change or cancel the property division agreement, the People's Court shall accept it. After the People's Court hears it, "If no fraud, coercion or other circumstances are found when entering into a property division agreement, the parties' claims shall be dismissed in accordance with the law. "There is neither concealment of property status nor fraud or coercion by one party, nor is there any concealment, transfer or sale. , destroying the joint property of husband and wife or forging debts, and omitting to deal with the joint property of husband and wife in the divorce agreement, the specific situation should be analyzed in detail. If a party clearly knows or should know the existence and actual possession of the property but does not make a request for division, it shall be deemed as acquiescence to the other party's ownership of the property and a waiver of the request for division. If the party does not know that the property exists, which results in the party failing to file a partition request, resulting in an omission of partition, the party's claim should be supported in accordance with the law. At the same time, this is undoubtedly a remedy for those parties who are unable to enjoy their due share of the joint property of the couple because they do not understand the operating conditions of the company or enterprise. At the same time, it should be stipulated that the statute of limitations for the lawsuit shall start from the time when the person knows or should know the existence of the property, such as the company's equity.

IV. Divorce disputes over intellectual property income

Although Article 17 of the current Marriage Law stipulates that the "intellectual property income" earned by the couple during the marriage relationship belongs to the husband and wife** *Same as all. The judicial interpretation of the word "income" has changed from the past "actual acquisition" as the standard to the current "actual acquisition or clearly obtainable", which more fully protects the rights and interests of the spouse of the intellectual property owner. However, Article 12 of "Interpretation (2)" "The 'income from intellectual property rights' stipulated in Paragraph 3 of Article 17 of the Marriage Law refers to the property income that is actually obtained or has been clearly obtainable during the marriage relationship." There are still considerable logical shortcomings.

The author intends to raise three questions: First, A wrote a novel during the period of his marriage to B, and during that period it was "clearly possible" to obtain property benefits (such as a publishing contract has been signed) ); But after A divorced B and then married C, the property income was “actually obtained” during the marriage between A and C. Is this income the joint property of A and whose spouse? Second, according to this provision, if some intellectual property owners want to deprive the other spouse of the absolute right to the property benefits of the intellectual property, they deliberately fail to take positive actions to "determine" the property benefits during the marriage relationship. However, the income was determined and actually determined only after the divorce. Wouldn’t the spouse just be disappointed? Third, if the author of a novel completed part of the work during his first marriage and created another part during another marriage, how should the intellectual property income from the work be distributed?

In another interpretation of the judicial interpretation of the Supreme People's Court, Shanghai stipulates that when there is a conflict between "clearly obtainable" and "actually obtained", the former is given priority. However, the second and third questions mentioned above in this article still cannot be answered.

What’s the problem? There is no unified legislative spirit in legislation. Why should the spouse of the intellectual property owner be protected? Husband and wife are an inseparable and close living entity. The labor income and business income of one party after marriage provide the economic foundation for living together with this partner. Intellectual labor is also labor, and income from intellectual property rights is also labor income. In addition to the personal rights of intellectual property rights that cannot be shared, the income from intellectual property rights should be owned exclusively. When one spouse engages in intellectual property creation, invention or design, the other party cannot do without the other party providing more life and spiritual care and support to the intellectual property owner in terms of family affairs, supporting the elderly, and raising children.

Therefore, only “creation” or “labor” time standards can be adopted for intellectual property disputes. As in the third question raised above, if A wrote one-third of a novel while married to B, and completed two-thirds of the novel while married to C, then the intellectual property rights of the novel One-third of the income belongs to the joint property of A and B, and two-thirds belongs to the joint property of A and C. Of course, in actual life, it is impossible to divide the labor invested in a work or invention so clearly, but only in this way can the spouse of the intellectual property owner be given the greatest protection.