According to the relevant laws and regulations of our country, if a husband and wife evade their debts through fake divorce, the creditor may apply to the court to cancel the division of property, or bring a lawsuit to the court and add the other party as the executor. How to identify property transfer
There are legal restrictions on the definition of malicious transfer of property. The Supreme People's Court made this provision in his Opinions on Several Issues Concerning the Application of the Civil Procedure Law of People's Republic of China (PRC). The judicial interpretation clearly stipulates that if a party has any of the following circumstances, it can be handled in accordance with the provisions of Item (6) of the first paragraph of Article 102 of the Civil Procedure Law:
(1) Concealing, transferring, selling off or destroying property after a legal document has become legally effective, which makes it impossible for the people's court to enforce it;
(2) Obstructing or resisting the execution of the people's court by violence, threat or other means;
(3) Having the ability to execute but refusing to execute the legally effective judgment, ruling, conciliation statement or payment order of the people's court.
Among them, "concealing, transferring, selling or destroying the property after the legal document takes legal effect, which makes it impossible for the people's court to execute it" is an act of malicious transfer of assets.
Then, how does the people's court deal with the malicious transfer of property? The interpretation also stipulates that "it can be handled in accordance with the provisions of Item (6) of the first paragraph of Article 102 of the Civil Procedure Law". Namely:
If a litigant participant or other person commits one of the following acts, the people's court may impose a fine or detention according to the seriousness of the case; If the case constitutes a crime, criminal responsibility shall be investigated according to law:
(1) Forging or destroying important evidence, which hinders the people's court from hearing a case;
(2) using violence, threats or bribes to prevent witnesses from testifying or instigating, bribing or coercing others to commit perjury;
(3) Hiding, transferring, selling off or destroying the property that has been sealed up or detained, or transferring the property that has been counted and ordered to be kept;
(4) Insulting, slandering, framing, beating or retaliating against judicial personnel, participants in litigation, witnesses, translators, expert witnesses, inspectors and assisting executors;
(5) Obstructing judicial personnel from performing their duties by violence, threat or other means;
(6) Refusing to perform a legally effective judgment or ruling of the people's court.
Second, what are the pre-marital property of husband and wife?
Pre-marital property refers to the property acquired by one spouse before marriage. Including personal labor income before marriage, inherited or donated property and other legal property. The premarital property of one spouse, whether movable or immovable, tangible or intangible, is protected by law as long as it is legally acquired.
1, the following aspects should be paid attention to when understanding premarital property:
First, the key to judging whether it belongs to premarital property is that the time to obtain property rights is before marriage. If the property right is obtained before marriage, but the property is actually occupied after marriage, its nature belongs to the personal property before marriage.
Second, the premarital property of one spouse is not converted into the joint property of the husband and wife because of the continuation of the marriage relationship. Unless otherwise agreed by the parties.
Third, personal property before marriage is naturally damaged, consumed or lost in married life, and if one party claims compensation with marital property during divorce, it will not be supported.
2. Medical expenses, living allowance for the disabled and other expenses obtained by one party due to physical injury.
The "medical expenses and living allowance for the disabled" here refer to the property directly related to life and health. Because these properties are closely related to life and health and are of great significance to the protection of individual rights, they should be personal exclusive property, not common property. China's civil code regards the medical expenses and living allowance of the disabled as the personal property of one spouse, which is conducive to safeguarding the legitimate rights and interests of the victims and providing legal protection for the victims to get effective treatment and the disabled to lead a normal life.
3. Property that belongs only to the husband or wife as determined in the will or gift contract.
Property acquired by inheritance or gift belongs to the joint property of husband and wife. However, in order to respect the personal wishes of the testator or donor and protect citizens' right to dispose of property freely, if the testator or donor clearly points out in the will or gift contract that the property is only bequeathed or given to one spouse and the other spouse has no right to enjoy it, then the property belongs to both husband and wife and belongs to one spouse. Another significance of this provision is to prevent the other spouse from abusing the inherited or donated property.
4. A special daily necessities.
The daily necessities dedicated by one party have the characteristics of personal use, such as personal clothes, shoes and hats. , should belong to the exclusive property of husband and wife. In China's judicial practice, when dealing with divorce property division, an individual's personal property is generally treated as personal property. Daily necessities with greater value should be owned by individuals because they are for personal use, which is also in line with the wishes of both husband and wife when purchasing. Moreover, husband and wife have equal rights to dispose of the same property, and in most cases both husband and wife have more expensive daily necessities.
5. Other property that should be owned by one party.
This provision is general. In addition to the first four provisions, the exclusive property of husband and wife also includes other property and property rights. With the development of social economy, the emergence of new property and the enhancement of individual independence consciousness, the scope of husband and wife's unique property will also increase.
Fake divorce generally has the following characteristics:
First, after the divorce, the parties continue to live together on the grounds that there is no room to live. The phenomenon of "divorce without leaving home".
Second, divorce by agreement is often adopted, which is obviously unfair to property division and debt commitment. The debtor gave part or all of his property to the other party, showing that he was in an embarrassing situation and had both people and money.
Third, the parties are being sued or executed and are anxious for divorce.
Fourth, there is no dispute between the two sides. In general divorce cases, the public says that the public is right, and the mother-in-law says that the mother-in-law is right, and the conflict is fierce. In the case of fake divorce, the husband and wife have already reached an agreement in secret, and the facts are basically the same. Generally, there will be no big disputes, but there is a tacit understanding.
legal ground
Article 1064 of the Civil Code of People's Republic of China (PRC) * * * Debts owed by husband and wife * * * If one party signs or ratifies the debt in the same way afterwards, the debts incurred by one party in his own name for the needs of family daily life during the marriage relationship belong to the same debt of husband and wife.
Debts incurred by one spouse in his own name during the marriage relationship that exceed the needs of family daily life are not joint debts of husband and wife; However, the creditor can prove that the debt is used for the husband and wife's life, production and operation, or based on the same meaning of both husband and wife.
Article 1089 At the time of divorce, husband and wife shall pay off their debts. At the time of divorce, husband and wife should jointly pay off their debts. * * * If the same property is not paid off or the property belongs to each other, it shall be paid off by mutual agreement; If the agreement fails, the people's court shall make a judgment.