作者：吴晓芳     2016-12-28

摘  要：本文针对最高人民法院《婚姻法》司法解释（三)施行2年多来的实际情况，对婚后父母为子女出资购房的处理问题、夫妻之间赠与房产的问题、夫妻债务纠纷、一方擅自赠与他人夫妻共同财产的效力问题、离婚协议中赠与子女房产条款的撤销、夫妻之间借款纠纷、一方个人财产的婚后孳息等问题进行了论述。

关键词：婚姻家庭  难问题  房产  赠与

最高人民法院《关于适用<中华人民共和国婚姻法>若干问题的解释》（三）（以下简称《婚姻法司法解释》（三））于2011年8月13日施行后，至今已经2年多了，刚出台时引起激烈的争论，几乎到了全民热议的地步。静下心来仔细考虑，发现不少争议的问题源于对解释条文的理解不同，现就《婚姻法司法解释》（三）适用中的一些疑难问题进行梳理和探讨，以期对婚姻家庭案件的审判实践有所裨益。

一、关于婚后父母为子女出资购房的处理问题

《婚姻法司法解释》（三）出台后，对第7条的争议最大，有人称之“违法”，有人认为该条对保护妇女权益极为不利。究其缘由在于，许多人将婚后父母部分出资为子女购房的情形也纳入到第7条的适用范围。其实，从第7条规定的内容来看，我们从字面语法上简单理解，“婚后由一方父母出资为子女购买”是对后面“不动产”的修饰，是一个定语，它所强调的是不动产，赠与标的物是不动产而非出资。第7条并没有“婚后用夫妻共同财产还贷”或“婚后用夫妻共同财产部分出资”的用语，适用第7条第1款的前提条件是：其一，一方父母全额出资且产权登记在出资人子女名下的；其二，购买不动产的目的是“为子女”，而非为父母本身。现实生活中，有的父母可能出于子女单位能够报销相关物业费、暖气费等原因，也有的考虑到将来可能发生的遗产税等问题，将父母自己出资购买的不动产登记在子女名下，实际上并无赠与子女的意思表示。父母挂子女之名购房，用子女的名义登记产权，但实际是父母本身的财产，没有赠与的真实意思。审判实践中应区分“赠与”与“挂名”的实际情况．否则离婚时因挂名登记导致父母与子女之间争夺产权，极有可能损害父母的切身利益。

《婚姻法司法解释》（三）第7条关注的重点是，在有关证据认定父母出资购房系赠与行为时，该房屋究竟应视为只对自己子女一方的赠与还是对夫妻双方的赠与？实质上是如何解读《婚姻法》第18条第3项规定的“遗嘱或赠与合同中确定只归夫或妻一方的财产”，其中的“确定”一词是解读的关键。

父母为已婚子女出资买房的行为在当下较为普遍，很多父母在子女结婚时倾注毕生积蓄买房，有的甚至是向亲朋好友借款，预支了今后的养老费用。按照国人的通常心理和习惯，在赠与已婚子女房产时，既不想以生硬的“明确意思表示”确定只给自己的子女，从而引起儿媳或女婿的不快，又担心子女婚姻破裂时被分走一半房产，许多父母便以房屋产权登记在自己子女名下的“含蓄”方式，表达只对自己子女赠与的意思，在没有签署书面协议明确赠与何方的情况下，离婚时如何认定房产归属，就涉及到法律的根本理念问题。法律在本质上是不保护不劳而获的，面对目前“疯狂”的房价，因为子女离婚而损失一半财产，很多老人都感到无法接受。于是，在司法实践中出现伪造债务、虚假诉讼甚至出资父母与自己子女倒签赠与合同的种种乱象，骨子里无非就是出资父母想在子女婚姻关系解体时保住自己辛苦积蓄购买的房产。本来父母出资给子女买房就可能考虑到将来的养老问题，最新修订的《老年人权益保障法》规定：“赡养人的配偶应当协助赡养人履行赡养义务”“，而离婚后子女的配偶连这个“协助”义务也没有了，却在离婚诉讼中要求将房产作为夫妻共同财产进行分割。如果不顾事实将婚后父母为子女购买的房屋大而化之地认定为夫妻共同财产，显然有悖法律的公平原则。不动产权属证书是权利人享有该不动产物权的证明，用房屋产权登记在自己子女名下的行为表明态度是最有说服力的。尤其从保护老年人合法权益的角度出发，该条规定对子女配偶一方试图通过婚姻获得大额财产的行为有一定的遏制作用。

反对《婚姻法司法解释》（三）第7条规定的观点认为，我国《婚姻法》夫妻财产制的基础是婚后所得共同共有，是指婚姻关系存续期间夫妻一方或双方所得的财产，均归夫妻双方共有，但法律另有规定的除外。《婚姻法司法解释》（三）第7条颠覆了法定的夫妻财产共有制度，属于违反法律规定的越权解释。其实，这种观点是对《婚姻法》精神的误解。我国1980年颁布的《婚姻法》第13条规定：“夫妻在婚姻关系存续期间所得的财产，归夫妻共同所有，双方另有约定的除外。”也就是说，除了夫妻另有约定．婚后所得财产一般都认定为夫妻共同财产。2001年修订的《婚姻法》恰恰没有笼统规定婚后所得均属共有，纠正了长期以来我国不分青红皂白将婚后所得财产一概视为夫妻共同财产的做法。其明确列举了夫妻共同财产和一方个人财产的范围，一方的婚前财产、一方因身体受到伤害获得的医疗费及残疾人生活补助费等费用、遗嘱或赠与合同中确定只归夫或妻一方的财产、一方专用的生活用品等等都被纳入一方个人财产的范围。《婚姻法司法解释》（三）第7条的依据正是《婚姻法》第18条第3项，即“遗嘱或赠与合同中确定只归夫或妻一方的财产”，何来违法之说呢？

也有观点认为，《婚姻法司法解释》（三）第7条与《婚姻法司法解释》（二）第22条的规定相互矛盾，令人无所适从。其实，《婚姻法司法解释》（三）第7条与《婚姻法司法解释》（二）第22条的规定并不冲突，是从不同法律层面分别规定的。《婚姻法司法解释》（二）第22条规定：“当事人结婚前，父母为双方购置房屋出资的，该出资应当认定为对自己子女的个人赠与，但父母明确表示赠与双方的除外；当事人结婚后，父母为双方购置房屋出资的，该出资应当认定为对夫妻双方的赠与，但父母明确表示赠与一方的除外。”我们认为，该条文中的“应当认定为赠与”，是指父母实际出资时意思表示不明的情况下，从社会常理出发认定为赠与，这是基于父母出资借给子女买房的概率远远低于父母出资赠与子女买房的概率。如果当事人有证据证明父母对子女购房的出资是借贷关系的，则应当按照借贷关系处理。

《婚姻法司法解释》（三）第7条的落脚点是如何认定一方父母出资所购买不动产的归属问题，而《婚姻法司法解释》（二）第22条强调的是如何处理父母为子女购房的出资问题，其落脚点不一样，不能得出这两条互相矛盾的结论。前者是对后者的进一步细化和补强，增加了不动产登记的条件，从而与物权的公示力相结合。实际生活中父母出资为子女买房的情况复杂多样，司法解释的规定只是提供一个基本裁判规则，不太可能穷尽各种情况。如果离婚时尚未取得不动产权属证书又缺乏明确赠与一方的证据，婚后父母为子女购房的出资应视为对夫妻双方的赠与。

如果一方父母出资，而房屋产权却登记在另一方名下，按照日常经验法则，除非当事人能够提供父母出资当时的书面约定或声明，证明出资父母明确表示向子女的配偶赠与，一般应认定为向夫妻双方的赠与；当然，如果婚后一方父母为子女出资购房，产权登记在夫妻双方名下的，该房屋应当认定为夫妻共同财产。

如果父母只是支付了房屋价款的一部分，其余款项由夫妻双方共同支付，则出资父母并不能取得房屋的所有权，也就无法决定将房屋赠与自己子女并将房屋登记在自己子女名下。父母部分出资时一般只能决定其出资份额赠与何方，鉴于房屋产权登记在出资方自己子女名下，将父母出资部分认定为只向自己子女的赠与更加合理合法。

从债务承担方式的角度考虑，当事人婚后购房办理按揭贷款时，银行通常会要求夫妻双方到场签字，由夫妻双方连带承担银行的债务。既然债务由夫妻双方承担连带责任，根据权利义务相一致的原则，该房屋的产权也应由夫妻双方共同享有。既然房屋产权归夫妻双方共同共有，增值收益亦应归产权人所有，即夫妻双方共同共有。

综上所述，《婚姻法司法解释》（三）第7条仅限于婚后父母为子女全款出资购买不动产的情形，对于不在该条适用范围的父母部分出资情形，如果房屋产权登记在出资人子女名下，可按照《婚姻法》第18条第(3)项的规定精神，该部分出资视为只对自己子女一方的赠与。如果双方对房屋的产权归属没有事先约定，所购房屋的产权及增值收益部分归夫妻双方共同共有。

具体分割夫妻共同财产时，将诉争房屋的性质认定为夫妻双方共有，并不代表可以简单机械地进行对半分割。根据《婚姻法》第39条的规定精神，要根据“财产的具体情况”，本着照顾子女和女方权益的原则进行裁决。也就是说，分割夫妻共同财产时，要全面考虑财产的资金来源、双方结婚时间长短、夫妻对家庭所做贡献等因素，避免出现显失公平的情况。对一方父母部分出资为子女购房的，离婚分割时可对出资父母的子女一方予以适当多分，至于“多分”的数额如何掌握，应由法官根据案件的具体情况作出公平合理的裁判。

二、关于夫妻之间赠与房产的处理问题

夫妻在婚前或婚姻关系存续期间约定将一方个人所有的房产赠与另一方或与另一方共有，但没有办理房产过户手续，赠与一方请求法院撤销房产赠与时应如何处理的问题，《婚姻法司法解释》（三）第6条已经给出答案，但学术界仍然存在争议。由于现行《婚姻法》第19条规定：“夫妻对婚姻关系存续期间所得的财产以及婚前财产的约定，对双方具有约束力。”有观点认为，既然夫妻之间的约定对双方有法律上的约束力，夫妻之间关于赠与房产的约定，不涉及第三人的问题，只要意思表示真实，没有欺诈、胁迫的情形，就应该认定为有效，履行房屋变更登记手续不是必要条件，赠与一方请求撤销赠与的，人民法院不应予以支持。在审判实践中，对夫妻将一方所有的房产约定为共同共有或按份共有时，按照《婚姻法》第19条的规定，有的法院就认为这种约定对夫妻双方有约束力，判令继续履行有关的赠与协议；如果夫妻约定将一方所有的房产全部赠与另一方，因未办理房屋变更登记手续，依照《物权法》的规定，房屋所有权尚未转移，而依照《合同法》关于赠与一节的规定，赠与房产的一方可以撤销赠与。有人就追问：同样是赠与，为什么赠与99%房产就不能撤销，而赠与100%就可以撤销呢？

其实这个问题的关键点在于：对夫妻之间的房产赠与行为，究竟是按《合同法》上的赠与处理还是按照《婚姻法》第19条的约定处理？我个人认为，无论夫妻双方约定将一方所有的房产赠与对方的比例是多少，都属于夫妻之间的有效约定。但问题是这种有效的赠与约定是否可以撤销？现行《婚姻法》中缺乏相应的规定。夫妻之间赠与的标的包括动产和不动产，《合同法》对赠与问题进行了比较详尽的规定，如：“赠与人在赠与财产的权利转移之前可以撤销赠与”；“赠与的财产依法需要办理登记等手续的，应当办理有关手续”；“具有救灾、扶贫等社会公益、道德义务性质的赠与合同或者经过公证的赠与合同，赠与人不交付赠与的财产的，受赠人可以要求交付”。婚姻家庭领域的协议常常涉及到财产权属的条款，对于此类协议的订立、生效、撤销、变更等并不排斥《合同法》的适用。在实际生活中，赠与往往发生在具有亲密关系或者血缘关系的人之间，《合同法》对赠与问题的规定也没有指明夫妻关系除外。一方赠与另一方不动产或约定夫妻共有，在没有办理变更登记之前，依照《合同法》第186条的规定，是完全可以撤销的，这与婚姻法的规定并不矛盾。

需要指出的是，《婚姻法司法解释》（三）第6条重点在于明确夫妻之间赠与房产可以按照《合同法》第186条的规定处理；如果赠与的房产已经登记过户，但受赠的夫妻一方对另一方有扶养义务而不履行、严重侵害赠与人或者赠与人的近亲属、不履行赠与合同约定的义务等，赠与人可以按照《合同法》第192条的规定行使法定撤销权。行使任意撤销权的依据是《合同法》第186条，条件是赠与房产的产权未发生转移，不适用社会公益和道德义务性质的赠与合同以及经过公证的赠与合同；法定撤销权是基于法定事由，由赠与人行使的撤销赠与的权利，其依据是《合同法》第192条。

三、关于离婚协议中房产赠与条款的撤销问题

双方当事人离婚时协议将共同所有的房产赠给子女，但没有办理房产变更登记手续，一方反悔要求撤销离婚协议中的赠与房产条款，审判实践中应如何处理，一直存在两种不同的观点。

一种观点认为，离婚协议中的房产赠与条款与整个离婚协议是一个整体，不能单独撤销。男女双方基于离婚事由将夫妻共同财产处分给子女的行为，可视为一种有目的的赠与行为，在双方婚姻关系因登记离婚而解除的情况下，应认为赠与房产的目的已经实现，故赠与房产条款不能随意撤销。另一种观点认为，婚姻登记部门在办理离婚登记时，根据《婚姻登记条例》的规定，只要求自愿离婚的双方当事人对子女和财产问题协商一致作出适当处理，并不对财产分割协议进行实质性审查。《合同法》规定经过公证的赠与合同，或者具有救灾、扶贫等社会公益、道德义务性质的赠与合同不可撤销，而在婚姻登记机关签订的赠与合同并不属于法定不能撤销的合同。

赠与行为一般都发生在亲属之间或具有一定亲密关系的当事人之间，婚姻家庭纠纷中涉及赠与条款的效力等问题，当然应适用《合同法》中有关赠与的规定。鉴于赠与合同单务、无偿的基本法律特征，未成年子女受赠取得房产没有支付对价，赠与人一方在标的物权属变更前有权撤销赠与。

我们认为，夫妻离婚时协议将共同所有的房屋赠给子女，一般有两种情况：一是在民政部门登记离婚，签订协议将夫妻共有的房产赠与子女；二是在法院协议离婚、领取民事调解书，自愿将房产赠与子女。

第一种情况下，当事人在民政部门登记离婚时，离婚协议中的房产赠与条款与整个离婚协议是一个整体，不能单独行使任意撤销权。有的当事人是在综合考虑各种因素的前提下才同意登记离婚的，也许附加的条件就是把房产无偿赠与子女。男女双方基于离婚事由将夫妻共同财产处分给子女的行为，可视为一种附协议离婚条件的赠与行为，在双方婚姻关系已经解除的前提下，基于诚信原则，也不能允许任意撤销赠与。有的当事人恶意利用赠与的撤销达到既离婚又占有财产的目的，不仅给子女或原配偶造成了经济损失和新的精神伤害，也给社会带来不诚信反而受益的负面影响。

如果一方当事人对离婚协议中的赠与条款反悔，在登记离婚后1年的除斥期间届满前提起诉讼，法院受理后经审查，未发现订立财产分割协议时存在欺诈、胁迫等情形的，应当依法驳回当事人的诉讼请求。

有观点认为，《婚姻法司法解释》（三）第6条规定：“婚前或者婚姻关系存续期间，当事人约定将一方所有的房产赠与另一方，赠与方在赠与房产变更登记之前撤销赠与，另一方请求判令继续履行的，人民法院可以按照《合同法》第186条的规定处理。”也就是说，除了经过公证的赠与合同，或者具有救灾、扶贫等社会公益、道德义务性质的赠与合同不可撤销，一般的赠与合同在标的物权利转移之前是可以撤销的。同样是赠与房产，为什么离婚时赠与子女的房产就不能撤销呢？其实，这种单纯的赠与行为与离婚协议时的赠与行为性质并不相同，赠与合同是赠与人将自己的财产无偿给与受赠人，受赠人表示接受赠与的合同，赠与人在赠与财产的权利转移之前可以撤销赠与。而在民政部门登记离婚时达成的财产分割协议所涉及的赠与条款，与解除婚姻关系密不可分，根据《婚姻法司法解释》（二）第8条的规定：“离婚协议中关于财产分割的条款或者当事人因离婚就财产分割达成的协议，对男女双方具有法律约束力。”当事人反悔请求变更或者撤销财产分割协议的，如果不能举证签订协议时有欺诈、胁迫的情形，一般很难得到法院的支持。《合同法》第186条的特色在于撤销权的任意性，即不需要任何理由，在赠与物的权利转移之前均可以撤销。而《婚姻法司法解释》（二）第8条则强调了离婚协议中财产分割条款的法律约束力，不可擅自变更或撤销。以离婚协议中赠与条款的法律约束力对抗任意撤销权的任意性，根据特别法优于一般法的原则，这类纠纷应当优先适用《婚姻法司法解释》（二）的规定。

第二种情况下，如果当事人达成的赠与协议经过人民法院审查确认后制作成民事调解书，该调解书一旦生效，即赋予了和判决书同等的强制效力，其效力应该等同于或高于经过公证的赠与合同，双方当事人均必须履行。从《物权法》的规定也可以看出：“因人民法院、仲裁委员会的法律文书或者人民政府的征收决定等，导致物权设立、变更、转让或者消灭的，自法律文书或者人民政府的征收决定等生效时发生效力”，故经法院确认的房产赠与，其效力等同于或高于经过公证的房产赠与合同，原则上是不能予以撤销的。

另外需要探讨的程序问题是，离婚协议中作为受赠人的子女能否作为原告提起请求履行赠与条款的诉讼或者到法院申请强制执行？由于作为受赠人的子女既不是离婚协议中的权利人，也不是民事义务的承受人，其只是民事权利所指向的对象，即离婚协议中赠与条款的受益人，其作为原告起诉不适格；对于离婚当事人在法院主持下达成协议领取调解书的情形，根据《民事诉讼法》第236条的规定：“调解书和其他应当由人民法院执行的法律文书，当事人必须履行。一方拒绝履行的，对方当事人可以向人民法院申请执行。”作为受赠人的子女显然不是“对方当事人”，其没有权利到法院申请执行。

四、关于一方个人财产在婚后产生的收益如何处理的问题

从现行《婚姻法》的内容来看，对于夫妻一方个人财产在婚后所产生的收益问题存在规定上的缺失。收益一般包括生产经营性收益、投资收益、知识产权收益、孳息、自然增值等等，《婚姻法》本身明确了生产、经营的收益和知识产权的收益归夫妻共同所有，而《婚姻法司法解释》（二）中明确了一方以个人财产投资取得的收益属于“其他应当归共同所有的财产”，《婚姻法司法解释》（三）则明确了孳息和自然增值的个人财产属性。

我国法律对“孳息”的概念未做规定，学者们对何谓“孳息”的解释不尽相同，有广义的也有狭义的。不少学者是在广义的范畴理解“孳息”的概念，故对《婚姻法司法解释》（三）第5条持反对意见，认为不利于保护婚姻中弱势一方的权益。我们认为，《婚姻法司法解释》（三）第5条的“孳息”一词应做限缩解释，专指非投资性、非经营性的收益。投资、经营收益与孳息收益的不同之处在于具有风险性、不确定性和主观性的特点，台湾学者黄立认为：“因拥有公司股票所获得之红利，系于公司经营有盈余时才会有红利的分配，若有亏损则无法分派红利，此种属于投资风险所得之利益，并非法定孳息。”[1]

虽然房屋租金在民法理论上认为属于法定孳息，但考虑到租金与银行存款不同，出租方对房屋还有维修等义务，租金的获取与房屋本身的管理状况密切相连，需要投入一定的管理或劳务，故将租金认定为经营性收益比较适宜。尤其对那种夫妻一方依靠房租收益维持生计的情形，如果将一方所有的房屋婚后出租的租金收益认定为个人财产，而另一方的工资、奖金收入属于共同财产，显然是极不公平的。

一方婚前所有果园中的果树，婚后由夫妻双方共同劳动、管理，该果树所结果实就属夫妻共同财产。《法国民法典》中称之为“人工孳息”，主要指因耕作而获得的果实。从我国现有法律规定的内容来看，将“人工孳息”归于《婚姻法》中的生产、经营性收益，可能更为合理合法。

夫妻一方个人财产在婚姻关系存续期间的自然增值，是指该增值的发生因通货膨胀或市场行情的变化而致，与夫妻一方或双方的协作劳动、努力或管理等并无关联。比如夫妻一方个人婚前所有的房屋、古董、字画、珠宝、黄金等，在婚姻关系存续期间因市场价格上涨而产生的增值，由于抛售后的增值是基于原物交换价值的上升所致，是不以人的意志为转移的市场行为作用的结果，仍应依原物所有权归属为个人所有，将该部分增值认定为一方的个人财产。

一般而言，增值包括自然增值（也有称被动增值）和主动增值，如果物或权利价格的提升是基于人为努力而产生的，应当属于主动增值，原则上按照夫妻共同财产处理。《婚姻法司法解释》（三）实际上对夫妻一方个人财产在婚姻关系存续期间的增值，是以该增值所基于的主观能动性行为或客观被动性行为作为划分标准，强调了客观被动性的自然增值属于一方的个人财产。之所以司法解释条文中没有出现“主动增值”的字眼，主要考虑到主动增值的原因包括进行生产、经营或者投资行为等，有些概念是交叉重合的。司法解释采用规定孳息、自然增值除外的方法，便于法官具体操作及,统一裁量尺度。

对一方用婚前财产婚后购买房产所带来的收益，需要区分是投资购房还是家庭居住。在将婚前房产用于非自住的投资用途时，另一方有权主张其投资收益。比如，夫妻一方用婚前个人存款婚后购买反租式酒店公寓，期间获取租金收益，虽然房产的所有权是一方个人的，但投资收益归属夫妻双方。有的炒房客用自己的婚前财产在婚后不断买进卖出房产，花费大量的时间和精力，所获收益认定为夫妻共同财产比较公平。

从目前“国五条”的有关规定来看，出售家庭唯一住房及满5年的，不收交易差价20%的税。参照该规定的精神，如果一方个人所有的房屋用于婚后共同居住，虽然婚姻关系存续期间进行过N次交易，但始终属于家庭唯一住房，离婚时对房屋增值部分，认定为个人财产比较适宜。

五、关于夫妻一方擅自将共同财产赠与他人的处理规则

审判实践中经常遇到夫妻一方擅自将共同财产赠与他人的纠纷，比如有配偶的一方与他人婚外同居，为了保持或解除这种同居关系，瞒着配偶擅自将夫妻共同财产赠与他人，发生纠纷后诉至法院应如何处理，实务中的做法不一。我们认为，现行《婚姻法》第3条规定：“禁止有配偶者与他人同居”，夫妻一方在已有配偶的情况下与其他异性婚外同居，其行为违反了《婚姻法》的禁止性规定，这种同居关系属于违法关系，不受法律保护。

夫妻共同财产是基于法律的规定，因夫妻关系的存在而产生的。在夫妻双方未选择其他财产制的情形下，夫妻对共同财产形成共同共有，而非按份共有。根据共同共有的一般原理，在婚姻关系存续期间，夫妻共同财产应作为一个不可分割的整体，夫妻对全部共同财产不分份额地共同享有所有权，夫妻双方无法对共同财产划分个人份额，在没有重大理由时也无权于共有期间请求分割共同财产。夫妻对共同财产享有平等的处理权，并不意味着夫妻各自对共同财产享有一半的处分权。只有在共同共有关系终止时，才可对共同财产进行分割，确定各自份额。因此夫妻一方擅自将共同财产赠与他人的赠与行为应属全部无效，而非部分无效。

对此问题《德国民法典》有明确规定：“配偶一方不得处分其在共同财产中的应有部分和在属于共同财产的各个标的中的应有部分”；《瑞士民法典》也规定：“任何配偶一方不得处分其在共同财产中的应有部分”；《美国统一婚姻财产法》规定：当一方配偶对婚姻财产行使管理、处分权时，其在1年内以婚姻财产赠与第三人的礼物累计金额不得超出500美元，或者根据该配偶的经济能力，其赠与的数额是合理的、恰当的，除非配偶双方共同赠与第三人，超过该数额之其他赠与必须经由配偶双方共同赠与。否则，另一方配偶有权启动返还原物之诉或恢复财产原状，要求损害赔偿之诉。该方配偶可起诉行使赠与的配偶一方、受赠方或者双方当事人。

虽然我国《婚姻法》缺乏上述有针对性的明确规定，但《婚姻法司法解释》（一）第17条规定：《婚姻法》第17条关于“夫或妻对夫妻共同所有的财产，有平等的处理权”的规定，应当理解为：“（一）夫或妻在处理夫妻共同财产上的权利是平等的，因日常生活需要而处理夫妻共同财产的，任何一方均有权决定。（二）夫或妻非因日常生活需要对夫妻共同财产做重要处理决定，夫妻双方应当平等协商，取得一致意见。他人有理由相信其为夫妻双方共同意思表示的，另一方不得以不同意或不知道为由对抗善意第三人。”

超出日常生活需要对夫妻共同财产进行处分，双方应当协商一致，一方单独将大额夫妻共同财产赠与他人，也是一种无权处分行为。在夫妻另一方事先不知情、事后未追认的情况下，根据《合同法》第51条的规定精神，除非权利人追认或处分人事后取得处分权，否则该处分行为无效；《物权法》第106条也规定：“无处分权人将不动产或者动产转让给受让人的，所有权人有权追回。”当财产被他人无合法依据占有时，所有权人有权根据物权的追及效力要求非法占有人返还财产，夫妻中的受害方可以行使物上请求权，以配偶和婚外同居者为共同被告，请求法院判令其返还财产。

涉及到具体处理问题，比如夫妻一方赠与婚外情人房产，究竟是返还房屋还是返还相应的购房款。我们认为，一般可分为两种情况：如果赠与人给受赠人钱款让其购房、购车等且登记在受赠人名下，赠与行为被确认无效后，受赠人应返还相应的钱款：如果赠与人是把原来登记在自己名下的房屋、车辆等变更登记为受赠人，受赠人应返还原房屋或车辆等。

有观点认为，实际生活中一方不知道对方有配偶而“被小三”的情况也不鲜见，此种情况应区别处理，对“被小三”一方的利益该也得保护。我们不赞同这种观点，审判实践中对一方是否属于“被小三”的事实，认定难度比较大。另外，感情问题不是商业行为，有付出未必一定有收获，在当事人双方均为成年人的情况下，其应当明确预知自己行为的法律后果。

有人提出这样的问题，即夫妻一方擅自赠与婚外情人大额财产，是否属于《婚姻法解释》（三）第4条“转移夫妻共同财产”的情形？从辞典的解释来看，“转移”一词是指改换位置，从一方移到另一方；另外还有“改变”之意。我们认为，一方擅自赠与婚外情人大额夫妻共同财产的行为与“转移”夫妻共同财产的概念有重合之处，应当认定属于《婚姻法司法解释》（三）第4条的情形，即构成分割夫妻共同财产的“重大理由”，另一方可以要求在婚姻关系存续期间分割夫妻共同财产。

六、关于夫妻债务问题

在离婚诉讼中，经常出现一方当事人持已生效的债务纠纷案件的民事判决书或调解书，主张该债务为夫妻共同债务，而另一方当事人则主张该债务系伪造或者为举债一方的个人债务。如果简单将婚姻关系存续期间一方以个人名义所负债务推定为夫妻共同债务，会导致一些当事人恶意伪造债务，使婚姻充满风险。因此，在审理离婚案件时应注意举证责任的分配问题，即举债一方应证明所负债务基于夫妻合意或用于夫妻共同生活、经营。

根据《婚姻法司法解释》（二）第24条规定，在债权债务纠纷中，债权人就婚姻关系存续期间夫妻一方以个人名义所负债务主张权利的，应当按夫妻共同债务处理。除外的情形只有两种，即夫妻实行分别财产制或与债权人明确约定为个人债务。实际生活中这两种除外情形极少，从而导致在债权人起诉的案件中，绝大多数债务被认定为夫妻共同债务，实际上有的却是夫妻一方借的赌债或与债权人串通伪造的债务。我们认为，夫妻债务问题的确比较复杂，不能简单地一刀切。2003年底出台《婚姻法司法解释》（二）的背景是，许多案件中夫妻双方恶意串通逃避债务，极大损害了债权人的利益。但《婚姻法司法解释》（二）经过一段时间适用后，审判实践中又出现了夫妻举债一方与债权人恶意串通损害另一方权益的情形。问题的关键是如何把握尺度，平衡地保护债权人和夫妻中未举债一方的利益。

从理论上讲，夫妻之间享有家事代理权，在家事代理范围内一方对外举债应视为夫妻双方共同负债，而判断超出家庭日常需要范围一方所举债务是否属于夫妻共同债务，则应从《婚姻法》的立法本意来分析。一是夫妻有无共同举债的合意，如果夫妻举债系双方共同意思表示，不论该债务所带来的利益是否为夫妻共享，该债务均应视为夫妻共同债务；二是该债务是否用于夫妻共同生活、经营。实际生活中，大多数民间借贷是建立在信用基础之上，即债权人信任债务人自身有偿还能力，而不是信任债务人的配偶有偿还能力。有观点认为，将夫妻一方在婚姻关系存续期间所负债务一概推定为共同债务，不仅违反了民法上债的相对性原理．更为严重的是，这种推定过于保护债权人的利益，几乎免除了债权人在缔结债务时的一切谨慎注意义务。根据合同相对性原则，合同的效力只及于合同双方，对合同以外的其他人不产生约束力，即便其是合同义务人的配偶。债权人除了对自己的签约行为承担责任外，同时还应承担由交易产生的风险。

《婚姻法司法解释》（二）实施后，许多学者和实务工作者对该解释第24条的规定提出质疑，认为其过分保护了债权人的利益而让婚姻充满了风险，不知情的配偶一方可能会为一段婚姻背上一辈子的债务。实际生活中因夫妻一方赌博、信用卡套现、高利贷等债务，导致无辜的配偶一方含辛茹苦为其还债。“这个司法解释强调的仅是合同中有无明确约定为个人债务这一形式要件，而在实践中又不能排除签约方的债务确实并非用于婚姻共同生活的实质内容，所以就难免使非签约方的财产权利受到损害。”[2]在起草《婚姻法司法解释》（三）的过程中，也曾考虑对《婚姻法司法解释》（二）第24条进行一定程度的修订，但最终因为争议过大而搁置。

仔细研读《婚姻法》第19条的规定：“夫妻对婚姻关系存续期间所得的财产约定归各自所有的，夫或妻一方对外所负的债务，第三人知道该约定的，以夫或妻一方所有的财产清偿。”换一个角度考虑，如果第三人不知道该约定呢？是否就得以夫妻共同财产清偿？笔者从立法者的书中找到了比较权威的答案：“在第三人与夫妻一方发生债权债务关系时，如果第三人知道其夫妻财产已经约定归各自所有的，就以其一方的财产清偿；第三人不知道该约定的，该约定对第三人不生效力，夫妻一方对第三人所负的债务，按照在夫妻共同财产制下的清偿原则进行偿还。关于第三人如何知道该约定，既可以是夫妻一方或双方告知，也可以为第三人曾经是夫妻财产约定时的见证人或知情人。如何判断第三人是否知道该约定，夫妻一方或双方负有举证责任，夫妻应当证明在发生债权债务关系时，第三人确已知道该约定。本款中的‘夫或妻一方对外所负的债务’，是指夫妻一方以自己的名义与第三人之间产生的债务，至于是为夫妻共同生活所负的债务，还是个人债务，在所不问，即无论是为子女教育所负的债务，或个人从事经营所负的债务，还是擅自资助个人亲友所负的债务，都适用本款的规定。”[3]从《婚姻法》本身条文的结构来看，第19条规定在“家庭关系”一章，第41条规定在“离婚”一章。由此可知，《婚姻法司法解释》（二）第24条是按照《婚姻法》本身的规定精神进行解释的，将夫妻一方在婚姻关系存续期间以个人名义所负债务推定为夫妻共同债务，由夫妻一方举证证明两种除外情形才能否定共同债务的性质，适用的是“推定”标准。债务诉讼不应当然沿用离婚诉讼的“用途”标准，因为“如果允许债务人通过离婚协议或人民法院的生效判决来移转或改变夫妻双方对外承担的连带清偿责任，债权人的权利就可能因债务人关系的变化而落空和丧失，这种不以自己过失为基础的权利丧失有悖公平和正义之法理”。[4]

处理夫妻债务纠纷时，可能会涉及到三个不同的法律关系：一是债权人起诉夫妻双方的债权债务纠纷，即夫妻对外关系，这时应适用《婚姻法司法解释》（二）第24条的“推定”标准；二是离婚纠纷，即夫妻对内关系，适用的是“用途”标准，即所借债务是否用于夫妻共同生活；三是夫妻之间的追偿关系，即《婚姻法司法解释》（二）第25条的规定：“一方就共同债务承担连带清偿责任后，基于离婚协议或者人民法院的法律文书向另一方追偿的，人民法院应当支持。”当然，夫妻双方在离婚诉讼中对某项债务未主张，一方认为自己在债务诉讼中多承担了责任且有合理依据的，也可向另一方追偿。因此，在审理不同的法律关系涉及的债务纠纷时，应当适用不同的标准进行裁判。《婚姻法司法解释》（二）第24条在节约司法成本、便于法官裁判及有力保护债权人权利方面功不可没。如果再考虑增加一些例外情形，可能对均衡保护债权人及夫妻未举债一方的财产权利更为有利。比如，债权人就婚姻关系存续期间夫妻一方以个人名义所负债务主张权利的，应当按夫妻共同债务处理。但夫妻一方能够证明所负债务没有用于夫妻共同生活的除外。如丈夫一方在外举债，妻子能够证明该债务系赌债的，应当按照丈夫一方的个人债务进行处理；如果夫妻中未举债一方能够证明债权人明知或应当知道该债务并非用于家庭共同生活的，应由举债一方承担还款责任，审判实践中遇到的担保之债便是如此，显然债权人知道该债务并非用于家庭共同生活，配偶一方对另一方对外的担保之债没有偿还义务。

针对审判实践中出现的问题，各地法院也在积极探索新的审判思路。如浙江省高级人民法院《关于审理民间借贷纠纷案件若干问题的指导意见》第19条规定：婚姻关系存续期间，夫妻一方以个人名义因日常生活需要所负的债务，应认定为夫妻共同债务。日常生活需要是指夫妻双方及其共同生活的未成年子女在日常生活中的必要事项，包括日用品购买、医疗服务、子女教育、日常文化消费等。夫妻一方超出日常生活需要范围负债的，应认定为个人债务，但下列情形除外：1.出借人能够证明负债所得的财产用于家庭共同生活、经营所需的；2.夫妻另一方事后对债务予以追认的。不属于家庭日常生活需要负债的，出借人可以援引《合同法》第49条关于表见代理的规定，要求夫妻共同承担债务清偿责任。援引表见代理规则要求夫妻共同承担债务清偿责任的出借人，应对表见代理的构成要件承担证明责任。又如上海市高级人民法院《关于审理民间借贷合同纠纷的若干意见》第3条规定：借贷纠纷中的债务属于夫妻共同债务还是个人债务，首先应当将最高人民法院关于《婚姻法的司法解释》（二）第24条的规定作为一个基本原则，同时还有两个因素需要考虑：1．夫妻有无共同举债的合意；2.该债务有无用于夫妻共同生活。这两个因素，属于基本原则的例外情形。如一方有证据足以证明夫妻双方没有共同举债合意或该债务没有用于夫妻共同生活，则该债务可以认定为夫妻一方的个人债务。我们认为，这些规定对夫妻债务性质的认定具有一定的借鉴意义。

婚姻关系存续期间，夫妻一方因侵权产生的债务，如该侵权行为系为了家庭利益或事实上使家庭受益的，比如出租司机因交通事故需进行赔偿产生的债务，应当认定为夫妻共同债务；如并非为了家庭利益且事实上家庭也未获益的，比如打伤别人需进行赔偿、侵犯他人名誉权进行赔偿等，应当认定为一方的个人债务。

七、关于夫妻之间的借款问题

婚前一方向另一方借款，没有约定还款期限，婚后双方共同生活多年。离婚时出借方要求另一方偿还借款，借款方以超过诉讼时效进行抗辩，如何处理？我们认为，婚前一方向另一方借款，没有约定还款期限，意味着出借方可以随时请求返还借款。双方缔结婚姻关系，并不导致婚前债权债务关系的消失。离婚时出借方要求对方偿还借款，对方关于超过诉讼时效的主张不能成立。

对于婚姻关系存续期间夫妻之间的借款问题，《婚姻法司法解释》（三）第16条作出了具体规定。首先，夫妻之间可以成立借贷法律关系，夫妻之间协议约定以夫妻共同财产出借给夫妻一方用于个人事务，应视为双方处分夫妻共同财产的行为，该协议有效，双方应按借款协议履行。其次，对于夫妻之间以夫妻共同财产出借引发的借贷纠纷，应在离婚诉讼中一并处理，这样可以兼顾民事主体个人权利的保护与婚姻关系的维护。涉及到诉讼时效问题，因出借的标的物属于夫妻共同财产，在未解除婚姻关系时无法分清彼此的具体数额，故诉讼时效应从离婚时才开始起算；如果一方是以个人财产出借，尽管双方存在婚姻关系，也应按照诉讼时效的规定处理。出借方超过诉讼时效后主张还款的，一般不予支持。

（作者单位：最高人民法院）

参考文献

[1]黄立：《民法总则》，中国政法大学出版社2002年版，第362页。

[2]杨大文主编：《亲属法》，法律出版社2004年版，第138页。

[3]胡康生主编：《中华人民共和国婚姻法释义》，法律出版社2001年版，第79页。

[4]何志：《婚姻法判解研究与适用》，人民法院出版社2004年版，第482页。

Author: Wu Xiaofang December 28, 2016

Abstract: This article focuses on the actual situation of the judicial interpretation (III) of the Marriage Law of the Supreme People's Court over the past two years, including the handling of the purchase of a house by parents for their children after marriage, the issue of property gifts between spouses, marital debt disputes, the effectiveness of one party's unauthorized gift of common property to others, the revocation of the provision on property gifts to children in divorce agreements, and loan disputes between spouses The issue of postmarital fruits of one party's personal property was discussed.

Keywords: Difficulties in Marriage and Family, Property Gifts

The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (III) (hereinafter referred to as the "Judicial Interpretation of the Marriage Law" (III)), which came into effect on August 13, 2011, has been in effect for over two years now. When it was first introduced, it caused intense controversy and almost reached the level of nationwide discussion. After careful consideration, it was found that many controversial issues stem from different interpretations of the interpretation provisions. This article aims to sort out and explore some difficult issues in the application of the Judicial Interpretation of Marriage Law (III), in order to benefit the trial practice of marriage and family cases.

1、 On the Handling of Parents' Contributions to Purchase a House for Their Children after Marriage

After the promulgation of the Judicial Interpretation of the Marriage Law (III), there has been the greatest controversy over Article 7, with some calling it "illegal" and others believing that it is extremely detrimental to protecting women's rights and interests. The reason for this is that many people include the situation where parents partially contribute to the purchase of a house for their children after marriage in the scope of Article 7. In fact, from the content of Article 7, we can understand it literally and grammatically. "After marriage, one parent invests to purchase for their children" is a modification of the later "immovable property", which is an attribute that emphasizes immovable property. The subject matter of the gift is immovable property rather than investment. Article 7 does not have the term "repay the loan with the joint property of the couple after marriage" or "partially contribute with the joint property of the couple after marriage". The prerequisite for the application of Article 7, paragraph 1, is: firstly, if one parent fully contributes and the property rights are registered in the name of the investor's child; Secondly, the purpose of purchasing real estate is "for the children", not for the parents themselves. In real life, some parents may register the real estate purchased by their parents themselves in their children's names due to reasons such as their children's unit being able to reimburse related property and heating fees, or considering potential issues such as inheritance tax in the future, without actually expressing the intention to give it to their children. Parents purchase houses in the name of their children and register property rights in their children's names, but in reality, it is their own property and there is no real intention of giving as a gift. In judicial practice, a distinction should be made between the actual situation of "gift" and "nominal". Otherwise, the registration of nominal names during divorce may lead to property rights disputes between parents and children, which is highly likely to harm the vital interests of parents.

The focus of Article 7 of the Judicial Interpretation of the Marriage Law (III) is whether the house should be considered as a gift only to one's own children or to both spouses when relevant evidence determines that the parents' contribution to the purchase of a house is a gift behavior? The essence is how to interpret Article 18 (3) of the Marriage Law, which stipulates that "the property determined in a will or gift contract to belong only to the husband or wife", and the term "determination" is the key to interpretation.

The behavior of parents investing in buying a house for their married children is relatively common nowadays. Many parents invest their lifetime savings to buy a house when their children get married, and some even borrow from family and friends to advance their future pension expenses. According to the usual psychology and habits of Chinese people, when giving property to married children, they do not want to use a blunt "clear intention" to determine that it is only given to their own children, which may cause displeasure to their daughter-in-law or son-in-law. They are also worried that half of the property will be taken away when their children's marriage breaks down. Many parents use the "implicit" method of registering property rights in their children's names to express the intention of giving only to their own children, How to determine the ownership of the property during divorce without signing a written agreement specifying the recipient of the gift involves fundamental legal issues. The law fundamentally does not protect gains for nothing. Faced with the current "crazy" housing prices, many elderly people find it unacceptable to lose half of their property due to their children's divorce. So, in judicial practice, there have been various chaotic phenomena such as forging debts, false lawsuits, and even funding parents to sign gift contracts with their own children. Essentially, the funding parents want to keep the property they have saved up to buy when their children's marriage relationship dissolves. Originally, parents investing in buying a house for their children may have considered future elderly care issues. The newly revised "Law on the Protection of the Rights and Interests of the Elderly" stipulates that "the spouse of the caregiver should assist the caregiver in fulfilling their maintenance obligations". However, after divorce, the spouse of the child no longer has this "assistance" obligation, but in the divorce lawsuit, they request that the property be divided as the joint property of the couple. If the property purchased by parents for their children after marriage is widely recognized as joint property of the couple, disregarding the facts, it is clearly contrary to the principle of fairness in the law. The real estate ownership certificate is a proof that the owner enjoys the property rights of the real estate, and the behavior of registering the property rights in the name of their own children is the most convincing way to show their attitude. Especially from the perspective of protecting the legitimate rights and interests of the elderly, this provision has a certain restraining effect on the behavior of one spouse of a child attempting to obtain large amounts of property through marriage.

The viewpoint opposing Article 7 of the Judicial Interpretation of the Marriage Law (III) holds that the foundation of the marital property system in China's Marriage Law is the joint ownership of marital income, which refers to the property obtained by one or both parties during the existence of the marriage relationship, which belongs to the joint ownership of both parties, except as otherwise provided by law. Article 7 of the Judicial Interpretation of the Marriage Law (III) overturns the statutory system of joint ownership of marital property, which is an ultra vires interpretation that violates legal provisions. In fact, this viewpoint is a misunderstanding of the spirit of the Marriage Law. Article 13 of the Marriage Law promulgated in 1980 in China stipulates: "The property obtained by a couple during the existence of their marital relationship shall be jointly owned by the couple, unless otherwise agreed by both parties." That is to say, unless otherwise agreed by the couple, the property obtained after marriage is generally recognized as joint property of the couple. The revised Marriage Law in 2001 did not provide for a general provision that all postmarital income belongs to joint ownership, correcting the long-standing practice in China of indiscriminately treating postmarital property as joint property of spouses. It clearly lists the scope of the joint property of the husband and wife and the personal property of one party. The premarital property of one party, the medical expenses and disability living allowances obtained by one party due to physical injury, the property determined in the will or gift contract to belong only to the husband or wife, and the exclusive daily necessities of one party are all included in the scope of one party's personal property. The basis of Article 7 of the Judicial Interpretation of the Marriage Law (III) is precisely Article 18 (3) of the Marriage Law, which states that "the property determined in a will or gift contract to belong only to the husband or wife" is illegal?

There are also views that the provisions of Article 7 of the Judicial Interpretation of the Marriage Law (III) and Article 22 of the Judicial Interpretation of the Marriage Law (II) are contradictory and confusing. In fact, the provisions of Article 7 of the Judicial Interpretation of the Marriage Law (III) and Article 22 of the Judicial Interpretation of the Marriage Law (II) are not in conflict, and are stipulated separately from different legal levels. Article 22 of the Judicial Interpretation of the Marriage Law (II) stipulates: "Before the marriage of the parties, if the parents contribute to the purchase of a house for both parties, the contribution shall be recognized as a personal gift to their own children, except for those explicitly expressed by the parents as gifts to both parties; after the marriage of the parties, if the parents contribute to the purchase of a house for both parties, the contribution shall be recognized as a gift to both parties, except for those explicitly expressed by the parents as gifts to one party, The term 'should be recognized as a gift' in this article refers to the recognition of a gift from the perspective of social norms when the parents' actual intention to contribute is unclear. This is based on the fact that the probability of parents lending money to their children to buy a house is much lower than the probability of parents donating money to their children to buy a house. If the parties involved have evidence to prove that the parents' contribution to the purchase of a house by their children is a loan relationship, it should be handled according to the loan relationship.

The purpose of Article 7 of the Judicial Interpretation of the Marriage Law (III) is to determine the ownership of the real estate purchased by one parent's investment, while Article 22 of the Judicial Interpretation of the Marriage Law (II) emphasizes how to handle the issue of parents' investment in buying a house for their children. Its purpose is different and cannot draw contradictory conclusions from these two points. The former is a further refinement and reinforcement of the latter, which increases the conditions for real estate registration and is combined with the publicity of property rights. In real life, the situations where parents contribute to buying a house for their children are complex and diverse, and the provisions of judicial interpretation only provide a basic rule of judgment, which is unlikely to exhaust various situations. If the real estate ownership certificate is not obtained at the time of divorce and there is no clear evidence of gift to one party, the contribution of parents to purchase a house for their children after marriage should be considered as a gift to both spouses.

If one parent contributes, but the property rights are registered in the name of the other party, according to daily rules of thumb, unless the parties can provide a written agreement or statement at the time of the parents' contribution to prove that the parents have clearly expressed their intention to donate to the spouse of their children, it should generally be considered as a gift to both spouses; Of course, if one parent contributes to the purchase of a house for their children after marriage and the property rights are registered in the names of both spouses, the house should be recognized as joint property of the couple.

If the parents only pay a portion of the house price, and the remaining payments are jointly paid by the couple, the contributing parents cannot obtain ownership of the house, and therefore cannot decide to give the house to their children and register it in their own children's names. When parents make partial contributions, they can generally only decide which party their contribution shares will be donated to. Considering that the property rights are registered in the name of the investor's own children, it is more reasonable and legal to recognize the parents' contribution as a gift only to their own children.

From the perspective of debt bearing methods, when the parties purchase a house after marriage and apply for a mortgage loan, the bank usually requires both parties to sign on site, and the couple will jointly bear the bank's debts. Since the debt is jointly and severally borne by both spouses, according to the principle of consistent rights and obligations, the property rights of the house should also be jointly enjoyed by both spouses. Since the property rights of the house belong to both the husband and wife jointly, the value-added income should also belong to the property owner, that is, both the husband and wife jointly own it.

In summary, Article 7 of the Judicial Interpretation of the Marriage Law (III) is only limited to cases where parents purchase immovable property for their children in full after marriage. For cases where parents make partial contributions that are not within the scope of application of this Article, if the property rights are registered in the name of the contributor's children, in accordance with the spirit of Article 18 (3) of the Marriage Law, such partial contributions can be considered as gifts to only one of their own children. If there is no prior agreement between the two parties regarding the ownership of the property, the property rights and value-added benefits of the purchased property shall belong to both parties jointly.

When dividing the joint property of a couple, recognizing the nature of the disputed property as jointly owned by both parties does not mean that it can be mechanically divided in half. According to the spirit of Article 39 of the Marriage Law, judgments should be made based on the "specific circumstances of property" and in accordance with the principle of taking care of the rights and interests of children and the woman. That is to say, when dividing the common property of a couple, it is necessary to fully consider factors such as the source of funds for the property, the length of marriage between the two parties, and the contribution of the couple to the family, in order to avoid situations that are significantly unfair. If one parent partially contributes to the purchase of a house for their children, the child of the contributing parent may be given an appropriate extra share during the divorce division. As for how to determine the amount of the extra share, the judge should make a fair and reasonable judgment based on the specific situation of the case.

2、 On the handling of property gifts between spouses

Article 6 of the Judicial Interpretation of the Marriage Law (III) provides an answer to the issue of how to handle the case where a couple, prior to marriage or during the duration of their marital relationship, agreed to donate their personal property to the other party or jointly own it with the other party, but did not complete the property transfer procedures. However, there is still controversy in the academic community. Due to Article 19 of the current Marriage Law, which stipulates: "The agreement between the husband and wife regarding the property obtained during the existence of the marriage relationship and the premarital property shall be binding on both parties." Some views believe that since the agreement between the husband and wife is legally binding on both parties, the agreement between the husband and wife regarding the gift of property does not involve the issue of a third party. As long as the intention is expressed truthfully and there is no fraud or coercion, it should be deemed effective, Fulfilling the registration procedures for house changes is not a necessary condition, and if the donating party requests the revocation of the gift, the people's court should not support it. In judicial practice, when a couple agrees to jointly own or share the property owned by one party, in accordance with Article 19 of the Marriage Law, some courts consider this agreement binding on both parties and order them to continue to fulfill the relevant gift agreement; If the husband and wife agree to give all the property owned by one party to the other party, and due to the failure to complete the registration procedures for house change, according to the provisions of the Property Law, the ownership of the house has not yet been transferred. However, according to the provisions of the Donation section of the Contract Law, the party who gives the property can revoke the gift. Some people ask: Why can't 99% of the property given as a gift be revoked, while 100% of the gift can be revoked?

In fact, the key point of this question is: Is the property donation behavior between couples handled according to the provisions of the Contract Law or Article 19 of the Marriage Law? I personally believe that regardless of the proportion of property that one party agrees to give to the other, it is a valid agreement between the couple. But the question is whether this valid gift agreement can be revoked? There is a lack of corresponding provisions in the current Marriage Law. The subject matter of gifts between spouses includes movable and immovable property, and the Contract Law provides detailed provisions on the issue of gifts, such as: "The donor may revoke the gift before the transfer of rights to the gift property"; If the donated property requires registration and other procedures in accordance with the law, relevant procedures should be completed; If a gift contract or a notarized gift contract with the nature of social welfare and moral obligations such as disaster relief and poverty alleviation does not deliver the gift property, the recipient may demand delivery. Agreements in the field of marriage and family often involve provisions on property ownership, and the formation, effectiveness, revocation, and modification of such agreements do not exclude the application of the Contract Law. In practical life, gifts often occur between individuals with intimate or blood relationships, and the provisions of the Contract Law on gifts do not specify the exception of marital relationships. If one party donates immovable property to the other party or agrees to have it jointly with the husband and wife, it can be completely revoked in accordance with Article 186 of the Contract Law before the change registration is processed, which is not contradictory to the provisions of the Marriage Law.

It should be pointed out that Article 6 of the Judicial Interpretation of the Marriage Law (III) focuses on clarifying that property gifts between spouses can be handled in accordance with Article 186 of the Contract Law; If the donated property has been registered for transfer, but one party of the donated couple fails to fulfill their obligation to support the other party, seriously infringes on the donor or the donor's close relatives, or fails to fulfill the obligations stipulated in the gift contract, the donor may exercise the statutory revocation right in accordance with Article 192 of the Contract Law. The basis for exercising the right of arbitrary revocation is Article 186 of the Contract Law, provided that the property rights of the donated property have not been transferred and do not apply to gift contracts with social public welfare and moral obligations, as well as notarized gift contracts; The statutory right to revoke a gift is a right exercised by the donor based on statutory reasons, and is based on Article 192 of the Contract Law.

3、 On the Revocation of the Property Gift Clause in the Divorce Agreement

When both parties divorced, they agreed to give their jointly owned property to their children, but did not complete the property change registration procedures. One party reneged and requested the revocation of the gifted property clause in the divorce agreement. There have always been two different views on how to handle it in judicial practice.

One view is that the property gift clause in the divorce agreement is integral to the entire divorce agreement and cannot be revoked separately. The act of both men and women disposing of their joint property to their children based on the grounds of divorce can be regarded as a purposeful gift. In the case of the dissolution of their marital relationship due to registration of divorce, the purpose of donating property should be considered to have been achieved, so the terms of donating property cannot be arbitrarily revoked. Another view is that when the marriage registration department handles divorce registration, according to the provisions of the Marriage Registration Regulations, it only requires both parties who voluntarily divorce to make appropriate decisions on children and property issues through consultation, and does not conduct substantive review of the property division agreement. The Contract Law stipulates that gift contracts that have been notarized or have social public welfare and moral obligations such as disaster relief and poverty alleviation cannot be revoked, while gift contracts signed at the marriage registration authority are not legally irrevocable contracts.

Gift behavior generally occurs between relatives or parties with a certain intimate relationship. In marriage and family disputes, issues such as the validity of gift terms should be governed by the provisions of the Contract Law on gifts. Given the basic legal characteristics of the gift contract being single transaction and free of charge, if a minor child receives a property as a gift without paying the consideration, the donor has the right to revoke the gift before the subject property ownership changes.

We believe that when a couple divorces, the agreement will give their jointly owned property to their children. There are generally two situations: one is to register the divorce with the civil affairs department and sign an agreement to give their jointly owned property to their children; The second is to agree to divorce in court, obtain a civil mediation agreement, and voluntarily donate the property to their children.

In the first case, when the parties register a divorce with the civil affairs department, the property gift clause in the divorce agreement is integral to the entire divorce agreement and cannot be unilaterally revoked. Some parties agree to register a divorce after considering various factors, and perhaps the additional condition is to give the property to their children for free. The act of both men and women disposing of their joint property to their children based on the grounds of divorce can be regarded as a gift with agreed divorce conditions. Based on the principle of good faith, the gift cannot be arbitrarily revoked even if the marital relationship between the two parties has been dissolved. Some parties maliciously use the revocation of the gift to achieve the purpose of both divorce and possession of property, which not only causes economic losses and new mental harm to their children or original spouse, but also brings negative effects of dishonesty and benefits to society.

If one party reneges on the gift clause in the divorce agreement and brings a lawsuit before the expiration of the one-year exclusion period after registering the divorce, and after the court accepts the lawsuit and examines it, it is found that there were no cases of fraud, coercion, etc. when entering into the property division agreement, the party's lawsuit request shall be rejected in accordance with the law.

There is a viewpoint that Article 6 of the Judicial Interpretation of the Marriage Law (III) stipulates: "Before marriage or during the existence of a marriage relationship, the parties agree to donate all the property owned by one party to the other party. If the donor revokes the gift before the registration of the change in the gift property, and the other party requests the order to continue to be performed, the people's court may handle it in accordance with Article 186 of the Contract Law." That is to say, in addition to the notarized gift contract, Alternatively, gift contracts with social public welfare and moral obligations such as disaster relief and poverty alleviation cannot be revoked. Generally, gift contracts can be revoked before the transfer of rights to the subject matter. Why cannot the property gifted to children during divorce be revoked when it is also a gift of property? In fact, this simple gift behavior is not the same in nature as the gift behavior at the time of divorce agreement. A gift contract is a contract in which the donor gives their own property to the recipient for free, and the recipient expresses acceptance of the gift. The donor can revoke the gift before the transfer of rights to the gift property. The gift terms involved in the property division agreement reached during the registration of divorce in the civil affairs department are closely related to the dissolution of the marriage relationship. According to Article 8 of the Judicial Interpretation of the Marriage Law (II), "The provisions on property division in the divorce agreement or the agreement reached by the parties due to divorce have legal binding force on both parties." If the parties retract their request to change or revoke the property division agreement, If there is no evidence of fraud or coercion when signing an agreement, it is generally difficult to obtain court support. The characteristic of Article 186 of the Contract Law is the arbitrariness of the revocation right, which means that it can be revoked without any reason before the transfer of the right to the gift. Article 8 of the Judicial Interpretation of the Marriage Law (II) emphasizes the legal binding force of the property division clause in the divorce agreement, which cannot be changed or revoked without authorization. According to the principle that special law is superior to general law, the legal binding force of the gift clause in the divorce agreement should be used to counteract the arbitrariness of the right to arbitrary revocation. This type of dispute should have priority in applying the provisions of the Judicial Interpretation of Marriage Law (II).

In the second case, if the gift agreement reached by the parties is reviewed and confirmed by the people's court before being made into a civil mediation agreement, once the mediation agreement takes effect, it will be given the same compulsory effect as the judgment, and its effectiveness should be equal to or higher than the notarized gift contract, and both parties must fulfill it. From the provisions of the Property Law, it can also be seen that "if the establishment, change, transfer, or extinction of property rights is caused by legal documents of the people's court, arbitration commission, or expropriation decisions of the people's government, it shall take effect from the effective date of the legal documents or expropriation decisions of the people's government." Therefore, the effectiveness of a property gift confirmed by the court is equivalent to or higher than that of a notarized property gift contract, In principle, it cannot be revoked.

Another procedural issue that needs to be explored is whether the children of the donee in the divorce agreement can file a lawsuit as plaintiffs requesting the fulfillment of the gift terms or apply for compulsory execution in the court? Due to the fact that the children of the donee are neither the rights holders in the divorce agreement nor the recipients of civil obligations, they are only the objects of civil rights, namely the beneficiaries of the gift terms in the divorce agreement, and they are not eligible to sue as plaintiffs; For cases where the parties to a divorce reach an agreement to receive a mediation agreement under the auspices of the court, according to Article 236 of the Civil Procedure Law: "The parties must fulfill the mediation agreement and other legal documents that should be executed by the people's court. If one party refuses to fulfill, the other party can apply to the people's court for enforcement." As the recipient's child is obviously not the "other party" and has no right to apply to the court for enforcement.

4、 How to handle the income generated from one party's personal property after marriage

From the current content of the Marriage Law, there is a lack of regulations regarding the income generated by one spouse's personal property after marriage. Income generally includes production and operation income, investment income, intellectual property income, fruits, natural appreciation, etc. The Marriage Law itself specifies that the income from production and operation and intellectual property income belong to the joint ownership of the couple, while the Judicial Interpretation of the Marriage Law (II) specifies that the income obtained by one party from personal property investment belongs to "other property that should belong to the joint ownership", The Judicial Interpretation of Marriage Law (III) clarifies the personal property attributes of fruits and natural appreciation.

The concept of "fruits" is not stipulated in Chinese law, and scholars have different interpretations of what "fruits" are, ranging from broad to narrow. Many scholars understand the concept of "fruits" in a broad sense, so they have objections to Article 5 of the Judicial Interpretation of Marriage Law (III), believing that it is not conducive to protecting the rights and interests of the disadvantaged party in marriage. We believe that the term "fruits" in Article 5 of the Judicial Interpretation of the Marriage Law (III) should be interpreted in a limited manner, specifically referring to non investment and non operational gains. The difference between investment, operating income, and interest income lies in the characteristics of risk, uncertainty, and subjectivity. Taiwanese scholar Huang Li believes that "the dividends obtained from owning company stocks are distributed only when the company has a surplus in operation, and if there is a loss, dividends cannot be distributed. This belongs to the benefits obtained from investment risk and is not a statutory interest

Although housing rent is considered a legal interest in civil law theory, considering that rent is different from bank deposits, and the lessor has maintenance and other obligations towards the house, the acquisition of rent is closely related to the management status of the house itself, requiring a certain amount of management or labor input. Therefore, it is more appropriate to recognize rent as operating income. Especially for situations where one spouse relies on rental income to make a living, it is clearly unfair to recognize the rental income from one spouse's rented property as personal property, while the other spouse's salary and bonus income belong to common property.

The fruit trees in the orchard owned by one party before marriage are jointly worked and managed by both parties after marriage, and the fruits produced by the fruit trees belong to the joint property of the couple. In the French Civil Code, it is referred to as "artificial fruits", mainly referring to fruits obtained through cultivation. From the existing legal provisions in our country, it may be more reasonable and legal to classify "artificial fruits" as productive and operational gains in the Marriage Law.

The natural appreciation of personal property of one spouse during the existence of the marriage relationship refers to the occurrence of such appreciation due to inflation or changes in market conditions, which is not related to the collaborative labor, efforts, or management of one or both spouses. For example, the appreciation of property, antiques, calligraphy and painting, jewelry, gold, etc. owned by one spouse before marriage due to market price increases during the existence of the marriage relationship. The appreciation after sale is based on the increase in the exchange value of the original item and is the result of market behavior that does not transfer according to human will. Therefore, the ownership of the original item should still belong to the individual, and this part of appreciation should be recognized as the personal property of one party.

Generally speaking, value-added includes natural value-added (also known as passive value-added) and active value-added. If the increase in the price of goods or rights is based on human efforts, it should belong to active value-added and should be treated as joint property of the couple in principle. The Judicial Interpretation of the Marriage Law (III) actually divides the appreciation of one party's personal property during the existence of the marriage relationship based on the subjective initiative or objective passive behavior on which the appreciation is based, emphasizing that the natural appreciation of objective passivity belongs to one party's personal property. The reason why the term "active value-added" does not appear in the judicial interpretation provisions mainly considers that the reasons for active value-added include production, operation, or investment behavior, and some concepts are overlapping. Judicial interpretation adopts the method of excluding fruits and natural appreciation, which is convenient for judges to operate and unify their discretion.

It is necessary to distinguish between investing in buying a house or living in a family when one party uses pre marital property to purchase a property after marriage. When using the premarital property for non self occupied investment purposes, the other party has the right to claim its investment income. For example, if one spouse uses their pre marital personal savings to purchase a reverse lease hotel apartment after marriage, they will receive rental income during the period. Although the ownership of the property is personal to one spouse, the investment income belongs to both spouses. Some real estate speculators use their pre marital assets to continuously buy and sell properties after marriage, spending a lot of time and effort. The profits obtained are recognized as joint property of the couple, which is relatively fair.

According to the current relevant provisions of the "National Five Articles", selling a family's only home and having lived for at least 5 years will not be subject to a 20% tax on the transaction price difference. According to the spirit of this regulation, if one party's personal owned house is used for living together after marriage, although there have been N transactions during the marriage relationship, it is still the only house in the family. The value-added part of the house at the time of divorce is considered as personal property, which is more suitable.

5、 Rules for Handling the Unauthorized Donation of Joint Property by One Party of a Husband and Wife to Others

In judicial practice, it is common to encounter disputes where one spouse gives their common property to others without authorization. For example, if a spouse cohabits with others outside of marriage, in order to maintain or terminate this cohabitation relationship, they give their common property to others without their spouse's knowledge. In practice, there are different approaches to how to handle disputes and bring them to court. We believe that Article 3 of the current Marriage Law stipulates that "cohabitation with others is prohibited". If one spouse cohabits with other members of the opposite sex outside of marriage, their behavior violates the prohibitive provisions of the Marriage Law. This cohabitation relationship is illegal and not protected by law.

The joint property of husband and wife is based on legal provisions and arises from the existence of the marital relationship. In the absence of any other property system chosen by both spouses, the couple forms a joint ownership of their common property, rather than a joint ownership by shares. According to the general principle of common ownership, during the existence of a marital relationship, the joint property of the husband and wife should be treated as an indivisible whole, and the husband and wife should jointly enjoy ownership of all the joint property without any share. Both parties cannot divide personal shares of the joint property, and they have no right to request the division of the joint property during the period of common ownership without significant reasons. The equal right of spouses to dispose of common property does not mean that each spouse has half of the right to dispose of common property. Only when the joint ownership relationship terminates can the joint property be divided and their respective shares be determined. Therefore, the act of one spouse donating their common property to others without authorization should be considered completely invalid, not partially invalid.

The German Civil Code clearly stipulates that "one spouse shall not dispose of their due portion in the common property and their due portion in the various objects belonging to the common property"; The Swiss Civil Code also stipulates that "no spouse shall dispose of their rightful share of common property"; The Uniform Marital Property Act of the United States stipulates that when a spouse exercises the right to manage or dispose of marital property, the cumulative amount of gifts given to a third party with marital property within one year shall not exceed $500, or the amount given is reasonable and appropriate based on the spouse's financial ability, unless both spouses jointly give to a third party, and any other gifts exceeding this amount must be jointly given by both spouses. Otherwise, the other spouse has the right to initiate an action to return the original property or restore the property to its original state, and demand compensation for damages. The spouse may sue the spouse exercising the gift, the recipient, or both parties.

Although China's Marriage Law lacks clear and targeted provisions as mentioned above, Article 17 of the Judicial Interpretation of the Marriage Law (1) stipulates that Article 17 of the Marriage Law stipulates that "the husband or wife shall have equal rights to handle property jointly owned by the husband and wife", It should be understood as: "(1) The rights of the husband or wife in handling the joint property of the husband and wife are equal, and if the handling of the joint property of the husband and wife is necessary for daily life, either party has the right to decide. (2) If a husband or wife makes important decisions regarding the joint property of the couple not due to daily life needs, both parties should negotiate equally and reach a consensus. If the other party has reason to believe that it is a joint expression of intent between the husband and wife, the other party shall not use disagreement or lack of knowledge as a reason to confront a bona fide third party

If the disposal of the joint property of the husband and wife exceeds the needs of daily life, both parties should reach a consensus through consultation. If one party alone donates a large amount of the joint property of the husband and wife to others, it is also an act of unauthorized disposal. In the absence of prior knowledge or subsequent recognition by the other party of the couple, in accordance with the spirit of Article 51 of the Contract Law, unless the right holder recognizes or disposes of the person and obtains the right to dispose, the disciplinary action shall be invalid; Article 106 of the Property Law also stipulates: "If a person without the right to dispose of immovable or movable property transfers it to the transferee, the owner has the right to recover it." When the property is taken over by others without legal basis, the owner has the right to demand the illegal possessor to return the property based on the effectiveness of the property rights. The injured party in the couple can exercise the right to claim in rem, and the spouse and cohabitant outside of marriage are the joint defendants, requesting the court to order them to return the property.

When it comes to specific handling issues, such as whether one spouse donates property to an extramarital partner, should they return the property or the corresponding purchase price. We believe that there are generally two situations: if the donor gives money to the recipient to purchase a house, car, etc. and is registered in the recipient's name, and the gift is confirmed to be invalid, the recipient should return the corresponding money; if the donor changes the registration of the house, vehicle, etc. originally registered in their own name as the recipient, the recipient should return the restored house, vehicle, etc.

There is a viewpoint that in real life, it is not uncommon for one party to be "mistressed" without knowing that the other party has a spouse. This situation should be treated differently and the interests of the "mistress" party should also be protected. We do not agree with this viewpoint. In judicial practice, it is relatively difficult to determine whether one party belongs to the fact of being a "third party". In addition, emotional issues are not commercial behavior, and there may not always be gains if there is effort. In cases where both parties are adults, they should clearly anticipate the legal consequences of their actions.

Someone has raised the question, is it a case of "transferring joint property between husband and wife" in Article 4 of the Interpretation of the Marriage Law (III), that one spouse gives a large amount of property to an extramarital partner without authorization? From the interpretation of the dictionary, the term 'transfer' refers to a change of position, moving from one party to another; In addition, there is a meaning of 'change'. We believe that the act of one party giving a large amount of joint property to an extramarital partner without authorization overlaps with the concept of "transferring" the joint property of the couple, and should be recognized as belonging to Article 4 of the Judicial Interpretation of the Marriage Law (III), which constitutes a "major reason" for dividing the joint property of the couple. The other party may request the division of the joint property of the couple during the existence of the marriage relationship.

6、 On the issue of marital debt

In divorce proceedings, it is common for one party to hold a valid civil judgment or mediation agreement in a debt dispute case, claiming that the debt is a joint debt of the couple, while the other party claims that the debt is forged or personal debt of the debtor. If one party's personal debt during the existence of a marriage relationship is simply presumed to be a joint debt of the couple, it will lead to some parties maliciously forging debts, making the marriage full of risks. Therefore, when trying divorce cases, attention should be paid to the allocation of the burden of proof, that is, the debtor should prove that the debt is based on the agreement of the couple or used for their common life and business.

According to Article 24 of the Judicial Interpretation of the Marriage Law (II), in debt disputes, if a creditor claims rights over the debts incurred by one spouse in their personal name during the marriage relationship, they shall be treated as joint debts of the couple. There are only two exceptions, namely the husband and wife implementing a separate property system or explicitly agreeing with creditors as personal debts. In practical life, these two exceptions are rare, resulting in the vast majority of debts being recognized as joint debts of the couple in cases filed by creditors. In fact, some are gambling debts borrowed by one spouse or debts forged in collusion with creditors. We believe that the issue of marital debt is indeed quite complex and cannot be simply cut across. The background of the introduction of the "Judicial Interpretation of Marriage Law" (II) at the end of 2003 is that in many cases, both spouses maliciously colluded to evade debts, greatly damaging the interests of creditors. However, after a period of application of the Judicial Interpretation of the Marriage Law (II), there have been cases in judicial practice where one spouse who raises debt maliciously colludes with creditors to damage the rights and interests of the other party. The key to the problem is how to grasp the scale and balance the protection of the interests of creditors and the non debtor party in the couple.

In theory, couples enjoy the power of family agency. Within the scope of family agency, one party's external borrowing should be considered as a joint debt of both parties. To determine whether the debt raised by one party beyond the daily needs of the family belongs to the joint debt of the couple, the legislative intention of the Marriage Law should be analyzed. One is whether the couple has a common intention to borrow money. If the debt is expressed by both parties, regardless of whether the benefits brought by the debt are shared by the couple, the debt should be considered as a joint debt of the couple; The second is whether the debt is used for living and operating together with the couple. In real life, most private lending is based on credit, where creditors trust the debtor's own ability to repay, rather than trusting the debtor's spouse to have the ability to repay. There is a viewpoint that inferring all debts incurred by one spouse during the marriage relationship as joint debts not only violates the principle of relativity of debts in civil law, but more seriously, this presumption excessively protects the interests of creditors and almost relieves them of all the duty of caution and attention when concluding debts. According to the principle of privity of contract, the validity of the contract only applies to both parties and does not bind anyone other than the contract, even if they are the spouse of the contractual obligor. Creditors should not only be responsible for their signing behavior, but also bear the risks arising from the transaction.

After the implementation of the Judicial Interpretation of the Marriage Law (II), many scholars and practitioners have questioned the provisions of Article 24 of the interpretation, believing that it excessively protects the interests of creditors and makes the marriage full of risks. An uninformed spouse may bear the debts of a generation for a marriage. In real life, due to debts such as gambling, credit card cashing, and high interest loans by one spouse, the innocent spouse has put in a lot of effort to repay their debts. This judicial interpretation only emphasizes the formal requirement of whether there is a clear agreement in the contract as personal debt, and in practice, it cannot be ruled out that the debt of the contracting party is indeed not the substantive content of marriage and common life, so it is inevitable that the property rights of non contracting parties will be damaged. [2] In the process of drafting the Judicial Interpretation of Marriage Law (III), We have also considered revising Article 24 of the Judicial Interpretation of the Marriage Law (II) to a certain extent, but it was ultimately shelved due to the excessive controversy.

Carefully read Article 19 of the Marriage Law, which states: "If a husband and wife agree that the property acquired during the existence of their marriage relationship belongs to each other, and if a third party knows about the agreement, the property owned by the husband or wife shall be used to settle the debt incurred by either party." From another perspective, what if the third party is not aware of the agreement? Is it possible to settle the joint property of the husband and wife? The author found a more authoritative answer from the book of legislators: When a third party has a debt to debt relationship with one of the spouses, if the third party knows that their marital property has been agreed to belong to each other, they shall use their own property to settle the debt. If the third party is not aware of the agreement, the agreement shall not be effective against the third party. The debt owed by one of the spouses to the third party shall be settled according to the principle of settlement under the joint property system of the spouses. Regarding how the third party knows about the agreement, it can be either the husband or the wife Alternatively, both parties may inform that a third party may have been a witness or insider during the marital property agreement. How to determine whether a third party is aware of the agreement? One or both spouses have the burden of proof, and the couple should prove that the third party was indeed aware of the agreement at the time of the debt debt debt relationship. The term 'debt owed by the husband or wife to a third party' in this paragraph refers to the debt incurred by one spouse in their own name with a third party. Whether it is a debt incurred for the joint life of the husband and wife, or a personal debt, regardless of whether it is a debt incurred for the education of their children, a debt incurred by an individual in business operations, or a debt incurred by unauthorized financial support for personal relatives and friends, the provisions of this paragraph shall apply [3] From the structure of the provisions of the Marriage Law itself, Article 19 is stipulated in the chapter on "Family Relations" and Article 41 is stipulated in the chapter on "Divorce". From this, it can be seen that Article 24 of the Judicial Interpretation of the Marriage Law (II) is interpreted in accordance with the spirit of the provisions of the Marriage Law itself, which presumes that the debt borne by one party during the marriage relationship in their personal name is a joint debt of the couple. Only when one party provides evidence to prove the two exceptions can the nature of the joint debt be denied, and the "presumption" standard is applicable. Debt litigation should not naturally follow the "purpose" standard of divorce litigation, because "if the debtor is allowed to transfer or change the joint and several liability of the couple to the outside world through divorce agreements or effective judgments of the people's court, the rights of the creditor may be lost and lost due to changes in the debtor's relationship. This loss of rights not based on one's own fault goes against the principles of fairness and justice. [4]

When dealing with marital debt disputes, there may be three different legal relationships involved: firstly, if the creditor sues the debt dispute between the couple, that is, the external relationship between the couple, the "presumption" standard in Article 24 of the Judicial Interpretation of Marriage Law (II) should be applied; The second is the divorce dispute, which refers to the internal relationship between the couple, and applies the "purpose" standard, that is, whether the borrowed debt is used for the couple's common life; The third is the recovery relationship between husband and wife, which is stipulated in Article 25 of the Judicial Interpretation of the Marriage Law (II): "If one party assumes joint and several liability for debt repayment and seeks compensation from the other party based on the divorce agreement or legal documents of the people's court, the people's court should support it." Of course, if both parties do not claim a certain debt in the divorce lawsuit, and one party believes that they have taken on more responsibility in the debt lawsuit and have a reasonable basis, You can also seek compensation from the other party. Therefore, when trying debt disputes involving different legal relationships, different standards should be applied for judgment. Article 24 of the Judicial Interpretation of the Marriage Law (II) plays an indispensable role in saving judicial costs, facilitating judges' judgments, and effectively protecting the rights of creditors. If we consider adding some exceptions, it may be more advantageous to balance the protection of the property rights of creditors and the spouse who did not borrow. For example, if a creditor claims rights over debts incurred by one spouse in their personal name during the marriage relationship, they should be treated as joint debts of the couple. Except for cases where one spouse can prove that the debt they have incurred has not been used for living together. If the husband raises a debt outside and the wife can prove that the debt is gambling debt, it should be handled according to the husband's personal debt; If the spouse who has not borrowed can prove that the creditor knew or should have known that the debt was not used for family living together, the debtor should bear the responsibility for repayment. This is the case with guaranteed debts encountered in judicial practice. Obviously, the creditor knows that the debt is not used for family living together, and one spouse has no obligation to repay the debt guaranteed by the other party.

In response to the problems that arise in trial practice, courts in various regions are also actively exploring new trial ideas. According to Article 19 of the "Guiding Opinions on Several Issues Concerning the Trial of Private Loan Dispute Cases" issued by the Higher People's Court of Zhejiang Province, during the existence of a marital relationship, debts incurred by one spouse in their personal name due to daily life needs should be recognized as joint debts of the couple. Daily life needs refer to the necessary matters in daily life for both spouses and their underage children living together, including purchasing daily necessities, medical services, children's education, daily cultural consumption, etc. If one spouse incurs debts beyond the scope of daily life needs, they shall be recognized as personal debts, except for the following situations: 1. The lender can prove that the property obtained from the debts is used for the common life and business needs of the family; 2. The other party of the couple subsequently recognizes the debt. If the debt does not belong to the daily needs of the family, the lender can invoke the provisions of Article 49 of the Contract Law on agency by estoppel, requiring the couple to jointly bear the debt repayment responsibility. The lender who invokes the rule of agency by estoppel requiring the couple to jointly bear the responsibility for debt repayment shall bear the burden of proof for the constituent elements of agency by estoppel. For example, Article 3 of the Shanghai Higher People's Court's Several Opinions on the Trial of Disputes over Private Loan Contracts stipulates that if the debt in a loan dispute belongs to the joint debt of the couple or individual debt, the provisions of Article 24 of the Judicial Interpretation of the Marriage Law (II) by the Supreme People's Court should be taken as a basic principle. At the same time, there are two factors that need to be considered: 1. whether the couple has a willingness to jointly raise debt; 2. Is the debt used for living together as a couple. These two factors are exceptions to the basic principles. If one party has sufficient evidence to prove that the couple did not agree to jointly raise debt or that the debt was not used for the couple's common life, then the debt can be recognized as personal debt of either party. We believe that these regulations have certain reference significance for determining the nature of marital debt.

During the existence of the marital relationship, debts incurred by one spouse due to infringement shall be recognized as joint debts of the couple if the infringement is for the benefit of the family or in fact benefits the family, such as debts incurred by taxi drivers who need compensation due to traffic accidents; If it is not for the benefit of the family and the family has not actually benefited, such as injuring others and requiring compensation for infringement of others' reputation rights, it should be recognized as one party's personal debt.

7、 On the issue of borrowing between spouses

Before marriage, one party borrowed money from the other party without an agreed repayment period, and after marriage, both parties lived together for many years. When the lender demands repayment of the loan from the other party during divorce, and the borrower defends it by exceeding the statute of limitations, what should be done? We believe that if one party borrows money from the other party before marriage and there is no agreed repayment deadline, it means that the lender can request a refund of the loan at any time. The conclusion of a marital relationship between the two parties does not lead to the disappearance of the pre marital debt relationship. At the time of divorce, the lender requests the other party to repay the loan, and the other party's claim that the statute of limitations has been exceeded cannot be established.

Article 16 of the Judicial Interpretation of the Marriage Law (III) provides specific provisions on the issue of borrowing between spouses during the existence of marital relationships. Firstly, a legal relationship of borrowing and lending can be established between husband and wife. The agreement between husband and wife stipulates that the joint property of the husband and wife should be lent to one party for personal affairs, which should be regarded as the act of both parties disposing of the joint property of the husband and wife. This agreement is valid and both parties should fulfill it according to the loan agreement. Secondly, loan disputes arising from the lending of joint property between spouses should be handled together in divorce proceedings, which can balance the protection of individual rights of civil subjects and the maintenance of marital relationships. When it comes to the issue of statute of limitations in litigation, as the subject matter of the loan belongs to the joint property of the couple, it is impossible to distinguish the specific amount of each other until the marriage relationship is dissolved. Therefore, the effect of litigation only starts from the time of divorce; If one party lends personal property, even if both parties have a marital relationship, it should be handled in accordance with the provisions of the statute of limitations for litigation. If the lender claims repayment after exceeding the statute of limitations, it is generally not supported.

(Author's unit: Supreme People's Court)

References

[1] Huang Li: "General Principles of Civil Law", China University of Political Science and Law Press, 2002 edition, page 362.

[2] Yang Dawen, editor in chief: "Family Law", Law Press, 2004 edition, page 138.

[3] Hu Kangsheng, editor in chief: "Interpretation of the Marriage Law of the People's Republic of China", Law Press, 2001 edition, page 79.

[4] He Zhi: "Research and Application of Marriage Law Interpretation", People's Court Press, 2004 edition, page 482.