Notice concerning Cases Determining One Spouse as a Debtor in the Enforcement of Effective Legal Documents

 2018-06-19  50


· Document Number:No. 38 [2014] of the Higher People's Court of Zhejiang Province on February 26, 2014

· Area of Law: Civil Litigation

· Level of Authority: Local Judicial Documents

· Date issued:02-26-2014

· Effective Date:02-26-2014

· Status: Effective

· Issuing Authority: Other Institutions of Zhejiang Province

 

Notice of the Higher People's Court of Zhejiang Province on Issuing the Legal Questions and Answers concerning Cases Determining One Spouse as a Debtor in the Enforcement of Effective Legal Documents
(No. 38 [2014] of the Higher People's Court of Zhejiang Province on February 26, 2014)
The people's courts of Zhejiang Province at all levels:
In order to regulate the cases determining one spouse as a debtor in the enforcement of effective legal documents and equally protect the lawful interests and rights of the parties or those who are not parties to a case, the Legal Questions and Answers concerning Cases Determining One Spouse as a Debtor in the Enforcement of Effective Legal Documents, as deliberated and adopted by the Judicial Committee of the Higher People's Court of Zhejiang Province, are hereby issued for your diligent and effective implementation in consideration of the actual circumstances of the enforcement. Any problem encountered in the practices shall be reported to the Enforcement Bureau of the Higher People's Court of Zhejiang Province.
Legal Questions and Answers concerning Cases Determining One Spouse as a Debtor in the Enforcement of Effective Legal Documents
(Adopted at the 2508th meeting of the Judicial Committee of the Higher People's Court of Zhejiang Province on January 27, 2014)
I. How to take enforcement measures for a case determining one spouse in the enforcement basis as a debtor?
Answer: Where one spouse is determined in the enforcement basis as a debtor (meaning that one spouse has participated in an action or arbitration or a notarization) and the nature of the debt has not been clarified, the debtor's property under his or her individual name or the debtor's portion of the property jointly possessed by both spouses shall be enforced.
Where an enforcement department has determined the joint debt upon review in accordance with the relevant evidence, the property jointly possessed by both spouses may be enforced. If the property jointly possessed by both spouses to be enforced is still insufficient for paying off the debt, the other spouse's personal property may be enforced.
The term “personal property” means one spouse's own property as specified by the Marriage Law of the People's Republic of China and its judicial interpretations.
II. How to understand the criteria for judging the nature of a debt?
Answer: Where nature of a debt has not been clarified in the enforcement basis, an enforcement department may, during the enforcement process, make a judgment and review in accordance with the provisions of the Marriage Law of the People's Republic of China and its judicial interpretations, i.e., to see whether the debt has occurred during the existence of a marital relationship.
For any of the following debts that occur during the existence of a marital relationship, an enforcement department may determine it as a personal debt during the examination of objection raised by the person not involved in the case:
(1) Where one spouse can prove the creditor and the debtor have clearly stipulated the debt as a personal debt, or be able to prove that it is under the circumstance as set forth in paragraph 3 of Article 19 in the Marriage Law of the People's Republic of China;
(2) A debt incurred from one spouse's unauthorized borrowing for subsidizing any aging parent, child, or other adult dependant on whom he or she has no obligation to support;
(3) A debt incurred during the process when one spouse acquires personal property through an inheritance or a bequest;
(4) A debt incurred from one spouse's management of personal property;
(5) A debt incurred when one spouse fails to obtain any benefit due to one spouse's unauthorized guarantee;
(6) The property-related penalty to which one spouse is sentenced due to criminal violence;
(7) A debt incurred from one spouse's illegal or criminal activities such as gambling and drug abuse;
(8) A debt incurred from litigation expenses paid for a marital litigation; or
(9) Any other personal debt as specified by laws, administrative regulations and judicial interpretations.
III. How to carry out the enforcement procedure after the nature of a debt is judged as the joint debt of both spouses?
Answer: The enforcement department may directly render a ruling to seize, freeze, transfer or sell property jointly possessed or the property under the name of the other spouse who is not a person subject to enforcement, and is not required to rule to add the other spouse as a person subject to enforcement.
The main body of the ruling for enforcement shall specify the specific property to be enforced.
IV. How to handle the objection raised by the applicant for enforcement when the nature of a debt is judged as a personal debt?
Answer: Where the nature of a debt is judged as one spouse's personal debt, the enforcement department shall not take enforcement measures for the other spouse's personal property. Where the applicant for enforcement raises an objection to such judgment, the enforcement department shall advise the applicant to file a lawsuit separately.
Where the applicant for enforcement files a lawsuit, the department of case-filing shall accept it, and the cause of action shall be disputes over the determination of joint debt of both spouses.
V. How to handle an objection raised by one spouse on the grounds that the debt subject enforcement is not a joint debt and the court is improper to enforce the property jointly possessed by both spouses?
Answer: If one spouse raises an objection on the grounds that the debt subject enforcement is not a joint debt and the court is improper to enforce the community property for the purpose of claiming a substantive right for all of the property subject to enforcement measures taken by the enforcement department, such an objection may be deemed as the objection raised by a person not involved in the case and shall be governed by Article 227 of the Civil Procedure Law of the People's Republic of China. The enforcement department may, according to the criteria specified in Article 2 herein, conduct a review and make a ruling. If the objector or the applicant for enforcement refuses to accept the ruling, he or she may file a lawsuit on objection to enforcement by the person not involved in the case or enforcement applicant.
VI. Can the enforcement department take punitive measures for enforcing the other spouse's property during the trial of the lawsuit on the objection to enforcement raised by a person not involved in the case?
Answer: If one spouse files a lawsuit on the objection to enforcement raised by a person not involved in the case for obstructing the enforcement procedures, and the judgment of the nature of a debt in the enforcement procedures is mainly based on the prima facie evidence, which may be inconsistent with the judgment made by the trial department in the substantial trial, during the trial of the lawsuit on the objection to enforcement raised by a person not involved in the case, it is generally inappropriate to take dispositive measures for such cases, and the enforcement department shall enforce such property according to the results of judgment. However, if the applicant for enforcement has provided full and effective guarantee and requires to continue the enforcement, the enforcement department may take dispositive measures.
VII. In a case where the debt has been judged as either spouse's personal debt, how to enforce the portion of the property jointly possessed by both spouses but is possessed by the spouse subject to enforcement or the property jointly possessed by both spouses but is registered under the name of the other spouse? How to provide remedies if the other spouse raises an objection?
Answer: In a case where the debt has been judged as either spouse's personal debt, the property of the person subject to enforcement or the property under his or her name shall be enforced.
If the property of the person subject to enforcement or the property under his or her name is insufficient to pay off the debt, half of property jointly possessed by both spouses may be enforced. If the property registered under the name of the other spouse is property jointly possessed by both spouses, such property may also be enforced. The enforcement department may directly take corresponding enforcement measures for the above property jointly possessed by both spouses.
If the other spouse claims a right for the property under the name of the person subject to enforcement, or raises an objection to whether the property registered under his or her name is property jointly possessed by both spouses or a portion of property jointly possessed by both spouses, such claim or objection shall be handled in accordance with Article 227 of Civil Procedure Law of the People's Republic of China.
If the other spouse raises an objection to the portion of property, or claims a right for the property under the name of the person subject to enforcement, the enforcement shall not be terminated in the trial of the lawsuit on the objection to enforcement raised by person not involved in the case.
VIII. How to handle such a claim where the nature of a debt is judged as the joint debt of both spouses but the person subject to enforcement has divorced, and the applicant for enforcement requires enforcing the other spouse's property shared from divorce settlement or his or her personal property?
Answer: A people's court may rule to enforce the other spouse's property shared from divorce settlement or his or her personal property, and is not required to add him or her as a person subject to enforcement. An objection raised by the other spouse to the enforcement of his or her property is the objection raised by person not involved in the case, and shall be handled in accordance with Article 227 of Civil Procedure Law of the People's Republic of China