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3354 China Construction Bank Shantou Branch vs. Zheng, Credit Card Dispute Case

Some debts that did not exceed the daily needs of the couple's family were dismissed because the other spouse failed to provide evidence for defense. Debts recognized as joint debts of husband and wife, and debts that exceed the daily needs of the family are not recognized as husband and wife because the bank fails to provide evidence to prove that the debts are used for the joint life, production and operation of the husband and wife, or for the common intention of the husband and wife. ***Same debt.

The facts of a legal case

Appellant (plaintiff in the original trial): Shantou Branch of China Construction Bank Co., Ltd. (hereinafter referred to as "CCB Shantou Branch").

Appellee (defendant in the original trial): Zheng.

Appellee (defendant in the original trial): Wang Yiying.

On May 24, 2017, Zheng applied for a credit card at the CCB smart teller with a credit limit of 24,000 yuan. Zheng's credit card consumption records show that most of his single consumption amounts do not exceed 10,000 yuan, and the consumption places include supermarkets, hotels, hardware stores, teahouses, restaurants, etc. On August 3, 2017, Zheng Jin applied for the Dragon Card credit card installment business from CCB Shantou Branch. Upon approval, Shantou Branch of China Construction Bank issued a loan of 90,000 yuan to Zheng, divided into 36 installments, with a handling fee of 0.4 and a monthly handling fee of 360 yuan. The amount was transferred to Zheng's debit card on August 17, 2017. On August 18, Zheng transferred 60,000 yuan from the debit card account to Wushan Street Community Health Service Center in Tianhe District, Guangzhou City, and 30,000 yuan to Heping Jewelry Store in Chaoyang District, Shantou City. As of May 14, 2018, Zheng Jindong still owed 80,000 yuan in installment principal, 21,018.70 yuan in consumption principal, 4,289.64 yuan in interest, 4,608.05 yuan in liquidated damages, and 11,520 yuan in handling fees, *** The total amount is 121,436.39 yuan.

Zheng He is husband and wife. Shantou Branch claimed to be jointly and severally liable for the repayment of Zheng's arrears.

Referee

The first instance court of Longhu District Court of Shantou City held that Zheng Jindong borrowed money from Shantou Branch of China Construction Bank and failed to repay the debt in full and on time, which constituted a breach of contract. Therefore, Zheng should repay the installment principal of 80,000 yuan, the consumption principal of 21,018.70 yuan, interest of 4,289.64 yuan, liquidated damages of 4,608.05 yuan, and handling fees of 11,520 yuan, totaling 121,436.39 yuan. The evidence submitted by the Shantou Branch was insufficient to prove that Zheng's borrowings were used for the couple's daily life and production and operation, so it did not support its claim that it should be jointly and severally liable for the repayment of Zheng's arrears.

The second instance of Shantou Intermediate People’s Court held that according to the provisions of Articles 2 and 3 of the "Interpretations of the Supreme People’s Court on Issues Concerning the Application of Law in the Trial of Cases Involving Marital Debt Disputes" (hereinafter referred to as the "Judicial Interpretation of Marital Debts") , the debt owed by Zheng’s credit card in this case includes two parts, one part is the consumption principal of 21,018.70 yuan and interest of 4,289.64 yuan, and the other part is the installment principal of 80,000 yuan, liquidated damages of 4,608.05 yuan, and handling fee of 11,520 yuan. According to Zheng's credit card transaction records submitted by China Construction Bank Shantou Branch, judging from the location and amount of consumption, Zheng's consumption amount did not exceed the daily needs of the family, and the consumption occurred during the existence of Zheng's marriage. Therefore, Zheng's consumption principal of RMB 21,018.70 and interest of RMB 4,289.64 should be deemed as joint debts of the husband and wife, and they should bear joint and several liability to pay off the debt totaling RMB 25,308.34. It can be seen from Zheng's bank card records that after Zheng received an installment payment of 90,000 yuan on August 17, 2017, he transferred it to other people's accounts in two installments the next day. These two sums of money obviously exceeded the family's daily needs. CCB Shantou Branch did not provide evidence to prove that the debt was used by Zheng He for his wife's daily life, wife's production and operation, or based on the consent of both spouses. willing. Therefore, the debt should not be regarded as a joint debt between husband and wife.

Comments and Analysis

The issue involved in this case is whether the debt incurred by one spouse due to credit card debt during the marriage relationship can be recognized as the joint debt of the couple.

thorium

The credit card debt was formed during the subsistence of the marriage relationship, and was determined to be the joint debt of the husband and wife according to Article 24 of the "Judicial Interpretation of the Marriage Law (2)".

(2018) Yun 2524 Minchu No. 2591, (2016) Yun 0302 Minchu No. 3833, (2017) Yun 0102 Minchu No. 1628, (2018) Liao 1382 Minchu No. 1729 , (2018) Nei 0105 Minchu No. 489, (2017) Minchu Yun No. 2524 No. 2591 Judgment held that the above-mentioned credit card consumption behavior without repaying the principal occurred during the existence of the relationship between the defendant and his wife. During this period, the debts owed were joint debts of the two defendants, and both defendants were jointly responsible for repayment. Although the two defendants had registered their divorce with the civil affairs department and their property had been divided, the plaintiff, Bank of China, proposed The Shui Branch still has the right to claim rights against the two defendants for the husband and wife's joint debt. (2013) Gao Yue Fenmin Er Shen Zi No. 901 Judgment held that the debt involved was a joint debt between the husband and wife because the debt involved occurred during the marriage. During the period of existence, and the debt occurred before the divorce and the divorce property debt agreement

The spouse failed to prove that the credit card debt exceeded the daily needs of the family.

(2017) Su No. 2536. No., (2018) Guangdong 13th Civil Section No. 2932

(2017) Su No. 2536 Judgment held that as to whether the debt owed by one spouse in his own name is the joint debt of husband and wife, the debtor’s The spouse should bear the burden of proof. The bank card withdrawal receipt, personal settlement business application and witness testimony submitted by Kang Yuanyuan in the first and second trials can only prove that Cui Zhengang used 143,000 yuan to repay his previous debt. , it cannot be proved that his previous debt was Cui Zhengang’s personal debt, and the remaining balance was not used for the husband and wife’s living together.

The spouse promised to bear the repayment responsibility for the credit card debt as the husband and wife’s joint debt.

(2018) Gan 0102 Minchu No. 3412, (2018) Gan 0830 Minchu No. 921

(2018) Gan 0102 Minchu No. 3412 Judgment held that the defendant Xu Huoxiu is the spouse of the defendant Xia Qingwu , promised to bear the repayment responsibility for the credit card debt as the joint debt of husband and wife. This commitment is legal and valid. Therefore, the plaintiff requires the defendants Xia Qingwu and Xu Huoxiu to return the principal, pay interest and legal fees for realizing the creditor's rights, which is in compliance with the agreement between the parties and legal regulations. , should be supported.

The spouses signed the mortgage contract together and are aware of the credit card debt

(2018) Gan 0681 Minchu No. 1070, (2018) Guangdong 1702 Minchu No. 2605, (2018) Guangdong 1702 Minchu No. 3995, (2018) Nei 0105 Minchu No. 4552

(2018) Gan 0681 Minchu No. 1070 Judgment held that: the above debt occurred during the marriage of the two defendants During the relationship, the "Supplementary Mortgage Agreement" signed between the plaintiff and the defendants Qiu Lianduo and Mo Xizhi was established and legal and valid, which is sufficient to prove that the defendant Mo Xizhi knew about the above-mentioned credit card overdraft and agreed to repay it.

The spouse is*. **Same borrower

(2018) Guangdong 1702 Minchu No. 3706, (2018) Su 1323 Minchu No. 8526, (2018) Nei 0105 Minchu No. 1256

(2018 ) Guangdong 1702 Minchu No. 3706 Judgment held that: the above-mentioned credit card overdraft debt occurred during the relationship between the two defendants as husband and wife, and the defendant Li Jinfeng was the same borrower who applied for the renovation installment loan as the defendant Zhang Chengzhi. Therefore, the principal and interest of the credit card overdraft in this case should belong to Defendants Li Jinfeng and Zhang Chengzhi expressed the same intention.

The court found that the credit card consumption was used to purchase daily necessities for the family or to live together as a couple

(2018) Guangdong 1704 Minchu No. 1062, (2018) Tianmin Shen No. 1199, (2018) Gan 07 Min Zhong No. 2461, (2018) Su 12 Min Zhong No. 1488

(2018) Guangdong 1704 Min Chu No. 1062 Judgment held that: According to the credit card transaction details, the defendant Li Luo Nai used the card many times to withdraw cash from bank ATMs and purchase daily household necessities in health care places and shopping malls. The debt involved was incurred due to non-repayment. The debt was incurred by the defendants Li Luo Nai and Liang Xiting. During the relationship. (2018) Jinminshen No. 1199 Judgment held that: Considering that the card swiping record information has certain probative power to prove that the debt was used for Wang Shusen and Liu Guiying’s marriage to live together and produce and operate together, the court of first instance dismissed Wang Shusen and Liu Guiying’s marriage. It is not inappropriate for debts incurred due to credit card swiping during the relationship to be regarded as joint debts between husband and wife. (2018) Gan 07 Min Zhong No. 2461 Judgment held that: According to the transaction statements submitted by the Agricultural Bank of China Quannan Branch in the first instance, judging from the consumption location and consumption amount, the debt in this case did not exceed the daily needs of the family. (2018) Su 12 Min Zhong No. 1488 Judgment held that: Bank of China Xinghua Branch has provided evidence to prove that the loan was used to purchase house decoration products from the Xinghua Fabing Ceramics Business Department, and the house belonged to Wei Gebao and Sun Guiying*** Same as all.

2. Typical cases that are not recognized as joint debts of husband and wife

Table 1

Serial number

Type

Typical cases

Typical reasons for judgment

The bank did not provide evidence to prove that the debt involved in the case was used for the daily life of the family, and it also did not provide evidence to prove that the debt was used for the couple*** Same life, same production and operation, or based on the consent of both spouses

(2018) Lu 0213 Minchu No. 2117, (2018) Xiang 0104 Minchu No. 6262, (2018) Guangdong 0604 Minchu No. 4618, (2018) Chongqing 0106 Minchu No. 8053, (2017) Guangdong 20 Minzhong No. 3381, (2018) Guangdong 0781 Minchu No. 3053, (2018) Guangdong 0303 Minchu No. 14686, (2018) Sichuan 13 Minzhong No. 1535

(2018) Guangdong 0604 Minchu No. 4618 Judgment held that although the plaintiff provided the marriage registration review form of the two defendants as evidence of the relationship between husband and wife, the defendant Wu Zongliang did not sign the application form It is confirmed that there is no evidence to prove that the debt involved in the case is a joint debt of husband and wife. (2018) Judgment No. 8053 of Chongqing 0106 Minchu held that the debt occurred during the marriage of the two defendants, but the money involved was used to purchase a vehicle and could not be considered to be used for the husband and wife’s living together, and the plaintiff had no evidence to prove it. Li Xiaoshuang is willing to repay the money involved in the case together with the defendant Tang Pengcheng ***, so the plaintiff’s request for the defendant Li Xiaoshuang and Tang Pengcheng *** to repay the money jointly is not supported.

The spouse is not the opposite party to the contract. According to the principle of privity of contract, support will not be supported and a separate lawsuit will be informed

(2017) Guangdong 1971 Republic of China No. 10858, (2017) Guangdong 1971 Republic of China No. 10858 No. 7335

(2017) Guangdong 1971 Republic of China Judgment No. 7335 held that although the defendant Liang Yingnan signed in the spouse column of the "Cash Installment Bank Purse Application Form" to confirm his knowledge of the loan, this signature did not create a confirmed debt. And agree to *** the legal effect of the settlement. The parties to the contract involving the "Application Form for Cash Installment Silver Purse" are the plaintiff and the defendant Chen Weijian. According to the principle of privity of contract, the rights and obligations of the contract should be limited to the plaintiff and Chen Weijian. For this reason, the defendant Liang Yingnan was not the counterparty to the contract, and there was insufficient basis for the Wangniudun Branch of Dongguan Rural Commercial Bank to appeal to Liang Yingnan to bear the contractual obligations under the "Cash Installment Bank Purse Application Form" involved in the credit card dispute. This case is a credit card dispute. If the plaintiff's creditor's rights cannot be paid, or if it involves the same debt between husband and wife, the plaintiff may pursue other legal procedures for relief, but this court will not handle it in this case.

The bank failed to provide evidence to prove that the credit card consumption occurred during the relationship between husband and wife

(2018) Yun 28 Min Zhong No. 426

(2018) Yun 28 Min Zhong Judgment No. 426 held that: the evidence provided by the Postal Savings Bank Banna Branch could not prove that Wang Yongbin and Yu Jinyu were husband and wife when Wang Yongbin made purchases with credit cards, and he should bear the consequences of unfavorable evidence.

The court found that the credit card consumption was not used for the husband and wife’s life together

(2018) Min 03 Min Zhong No. 1385, (2018) Yun 08 Min Zhong No. 550

(2018) Min 03 Minzhong Case No. 1385 held that: the consumption content is mainly "building materials wholesale" and "other wholesalers", and basically the monthly consumption amount of "building materials wholesale" and "other wholesalers" is 30,000 Yuan or so. Xiao Haiping became overdue on December 21, 2015. The overdue principal, that is, the principal of the debt in this case was 24,227.38 yuan. He did not make any consumption in December 2015 before the overdue date. His main consumption content in November 2015 was " "Building Materials Wholesale", the consumption amount was 24,280 yuan. Therefore, taking into account the consumption of the credit card involved in the case, the debt in this case should not be determined as an expense necessary to maintain a normal life of a family.

(2018) Yun08 Minzhong No. 550 Judgment held that: The main consumption direction of Lu Rongwei’s credit card is furniture, building materials, cars, coffee, tea, etc., and its transaction records show that the single consumption amount is relatively large. Based on the characteristics of large and frequent monthly consumption, based on daily life experience, the consumption of the credit card involved should not be regarded as necessary consumption to maintain the normal life of a family.

The spouse provided sufficient evidence to prove that the credit card debt was not used for the couple’s living together

(2018) E05 Minzhong No. 1639

(2018 ) E05 Minzhong No. 1639 Judgment held that: Wang Qinglong’s credit card borrowings were debts incurred in his own name that exceeded the daily needs of the family during the marriage relationship with Zhang Yan. Zhang Yan submitted a lawsuit from Longtan Village, Taiping River, Yiling District, Yichang City. The certificate from the Public Security Committee and the handwritten certificate from Wang Qinglong and Wang Tianqi, Zhang Yan’s legitimate daughter, can prove that Wang Qinglong’s credit card loan was not used for the couple’s daily life and production and operation.

(2) Main disputes in trial practice

As can be seen from the above table, the disputes on this issue in trial practice mainly include the following aspects:

First, as can be seen from Table 1 and Table 2, courts in most areas have dealt with the issue of whether one spouse’s credit card debt is a joint debt of the spouses in accordance with the Judicial Interpretation of Spousal Debts. However, at the same time, There are still many local courts that assume that one spouse's credit card debt was formed during the marriage, and according to Article 24 of the "Judicial Interpretation (2)", it is presumed to be the joint debt of both spouses. For example, the judgments of some courts in Shandong, Chongqing and Guangdong are shown in item 1 of Table 1.

Second, the burden of proof is distributed differently. As to whether the credit card debt is used to live together as a couple, the burden of proof lies with the other spouse or the bank. Courts in various places have great differences. For example, the (2017) Su Minshen No. 2536 and (2018) Guangdong 13 Minzhong No. 2932 judgments in item 2 of Table 1 both hold that the spouse of the credit card debtor should provide evidence to prove that the credit card debt was not used for the couple’s living together. The reason for determining that item 5 in Table 2 is not a joint debt of husband and wife is because the other spouse has provided sufficient evidence to prove that the credit card debt was not used for the joint life of husband and wife, and the burden of proof is also assigned to the other spouse. . In items 1 and 3 of Table 2, cases such as (2018) Lu 0213 Minchu No. 2117, (2018) Xiang 0104 Minchu No. 6262, and (2018) Guangdong 0604 Minchu No. 4618 all believe that the bank should provide evidence to prove The credit card debt is used for the husband and wife to live together, produce and operate together, or based on the mutual consent of the husband and wife.

Thirdly, courts in various places have different decisions on whether the amount owed for purchasing a vehicle with a credit card installment payment is considered a joint debt between husband and wife.

Judgments such as (2018) Gui 1002 Minchu No. 1747, (2018) Gui 1002 Minchu No. 2295, and (2018) Yu 0155 Minchu No. 4004 all held that according to Article 3 of the Judicial Interpretation of Marital Debts, this type of credit card debt It should be deemed that the debts are shared by both husband and wife. The judgments of (2018) Yu 0106 Minchu No. 8053 and (2018) Yu 0106 Minchu No. 8054 held that the debt occurred during the marriage of the two defendants, but the money involved was used to purchase a vehicle and cannot be regarded as used by the couple* ** live together, and the bank (creditor) has no evidence to prove that the other spouse is willing to repay the money involved with the credit card debtor (spouse) ***, so it should not be regarded as a joint debt between husband and wife.

Fourth, when determining whether the debt belongs to the same couple, courts in various places have different opinions on whether the court should examine the specific purpose of the credit card debt. The judgments listed in Item 6 in Table 1 and Item 4 in Table 2 are based on the court's examination of the purpose of the credit card debt, and then combined with whether the debt is used for the husband and wife's living together or the production and operation of the couple. To determine whether it is a joint debt between husband and wife; other courts did not examine the purpose of the credit card debt.

It is worth noting that, as can be seen from items 3, 4, and 5 in Table 1, many banks are already applying the principle of "***debt***signing" for couples' debts in practice. For example, let the other spouse promise to repay the credit card debt together, treat the other spouse as the co-borrower, and sign the mortgage contract together.

(3) Ideas for dealing with this issue

In accordance with the spirit of the judicial interpretation of marital debts, the following aspects should be mainly considered when dealing with such issues:

First, if the situation of "*** debt *** signature" is met, it should be regarded as a joint debt between husband and wife. Article 1 of the Judicial Interpretation of Spousal Debts clarifies the principle of "first debt, first signature" for marital debts. On the one hand, this institutional arrangement is conducive to protecting the other spouse's right to know and consent, and can eliminate it as much as possible from the source. The phenomenon that the other spouse is "indebted" occurs; on the other hand, it can also effectively prevent creditors from suffering unnecessary losses because they cannot prove it afterwards. Therefore, situations like those listed in items 3, 4, and 5 of Table 1 should be considered as joint debts between husband and wife.

Second, when the situation of "***debt***signature" is not met, the court should take the initiative to examine the use of credit card debts. If it is mainly used for the daily needs of the family, it should be presumed that the couple ***Same debt. At this time, if the other spouse contests that the debt owed is not the joint debt of the couple, he should bear the burden of proof. Regarding the scope of household daily needs, we cannot adopt a "one size fits all" approach. The "Classification of Resident Consumption Expenditures (2013)" formulated by the National Bureau of Statistics can be used to classify residents' consumption expenditures into food, tobacco and alcohol, clothing, housing, daily necessities and services, The necessity and appropriateness of expenditures shall be comprehensively considered for eight categories including transportation and communications, education, culture and entertainment, medical care, and others, as well as the support, maintenance and support obligations stipulated in the Marriage Law.

Third, for those who neither meet the requirements of "***debt***signature", but also find out that the credit card debt exceeds the family's daily needs, if the credit card debt is used for the couple's marriage, If the husband and wife live together or produce and operate together, they should also be regarded as the husband and wife share the same debt. At this time, if the other spouse makes a defense, he should also bear the burden of proof. It is worth noting that the connotation of "husband and wife living together" covers and is greater than "family daily life". The essential feature of "living together as a couple" is "family interests". If the credit card debt is for the benefit of the family, it should be regarded as a debt of the couple; if it is not for the benefit of the family, it cannot be regarded as a debt of the couple. Same debt. As for "husband and wife jointly engaged in production and business operations", there are three main forms: first, the husband and wife are engaged in joint production and business operations or investment; second, one spouse is engaged in production and business activities, but the husband and wife jointly share the income; Third, one or both spouses are engaged in rural land contract management or individual industrial and commercial operations.

Fourth, the bank should bear the burden of proof regarding the use of credit card debt, because the credit card consumption records are in the hands of the bank.

In short, when dealing with such problems, we must strictly implement the provisions of the judicial interpretation of marital debts. In cases where the principle of "***debt***signature" is not met, the nature and purpose of credit card debts must be distinguished. . For the part of the debt that does not exceed the daily living expenses of the couple's family, if the other spouse fails to provide evidence to defend it, it will be deemed as the joint debt of the couple; for the debt that exceeds the daily living expenses of the family, if the bank fails to provide evidence to prove this part If the debt is used for the husband and wife's daily life, production and operation, or for the husband and wife's mutual expression of intention, it should not be regarded as a joint debt of the husband and wife, and cannot be all in accordance with the "Judicial Interpretation (2)" According to the provisions of Article 24, all credit card debts owed by one spouse are presumed to be joint debts of the spouses, or all of them are denied to be joint debts of the spouses.

Case Index

(2018) Guangdong 0507 Minchu No. 1533; (2018) Guangdong 05 Minzhong No. 1132

Article: Hu Feixia

Formatting: Ma Cong

Reviewer: Yin Xiufeng

Note: The article does not represent the platform’s views

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