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Can Lao Lai's spouse have a deposit?
Can Lao Lai's spouse have a deposit?

Whether Lao Lai's spouse can have a deposit, in fact, we will encounter various problems in our life. When there is a contradiction between the two disputes, we should choose to protect ourselves through legal channels in time. The following is to find out whether Lao Lai's spouse can have a deposit.

Can Lao Lai's spouse have a deposit 1 Legal analysis: Yes, if the husband and wife are not in the same debt, the other spouse can not bear the responsibility, depending on whether the husband and wife are in the same debt in the judgment. As for the account where Lao Lai deposited his property in his wife's name, as long as there is evidence to prove that it belongs to Lao Lai, the parties may apply to the people's court for enforcement according to law, and the people's court will enforce the deposit and safeguard the legitimate rights and interests of the parties. For the specific situation, please ask the parties to verify according to the actual situation and relevant laws and regulations.

Legal basis: Article 114 of the Civil Procedure Law of People's Republic of China (PRC), if a unit obligated to assist in the investigation and execution commits one of the following acts, the people's court shall order it to perform its obligation of assistance and may also impose a fine:

(a) the relevant units refused or hindered the people's court to investigate and collect evidence;

(two) after receiving the notice of the people's court for assistance in execution, the relevant units refused to assist in inquiring, sealing up, freezing, transferring or changing the property;

(3) After receiving the notice from the people's court for assistance in execution, the relevant unit refuses to assist in detaining the income of the person subjected to execution, handling the transfer procedures of relevant property rights certificates, and handing over relevant tickets or other property;

(four) other refused to assist in the implementation. The people's court may impose a fine on a unit that commits one of the acts listed in the preceding paragraph; Those who still fail to perform the obligation of assistance may be detained; And may put forward judicial suggestions for disciplinary action to the supervisory organ or the relevant authorities.

Can Lao Lai's spouse have a deposit? If Lao Lai has no money, but his spouse has a lot of property, what should he do at this time? Here, the author provides the following solutions for everyone:

Idea 1: sue Lao Lai's spouse alone.

If Lao Lai owes debts during the marriage, then this debt is probably a joint debt of husband and wife, and both husband and wife can be required to pay off.

Article 1064 of the Civil Code stipulates that "the debts incurred by both husband and wife with the same signature or expressed by one party in the same meaning afterwards, as well as the debts incurred by one party in his own name for the daily needs of the family during the marriage relationship, belong to the same debt of husband and wife." To tell the truth, the law always makes people want to doze off in the cold. I generally simply understand that "the husband and wife are in the same debt" means that the young couple * * * jointly borrow money/borrow money by one person, and obtain the consent of the other party (afterwards)/borrow money by one person for family life.

In this case, if it is difficult to promote the execution of Lao Lai's case, we might as well try to sue his spouse separately and ask his spouse to bear joint and several liability for Lao Lai's debts. If the spouse successfully sues and obtains a successful judgment, if the spouse fails to fulfill the repayment obligation, he can then apply to the court for compulsory execution of the property under the spouse's name, not limited to the spouse's property before marriage or after marriage.

Idea 2: directly apply for the property under the name of the spouse.

First, it must be "the property under the name of the spouse is the same as the property of the husband and wife", such as the property that Lao Lai bought and registered under the name of one spouse after marriage.

Second, if you can successfully prove the previous step, the small goal you can achieve is to seal up the above-mentioned property (just seal up, not the auction amount).

Third, there will be many situations after the seizure, such as negotiating with the spouse to divide the property, and the spouse raises an execution objection. At this time, you may encounter many difficulties and cannot directly execute the property (the situation you may encounter is complex and changeable, and non-professionals can leave it to lawyers, so I won't repeat it). Here we only discuss whether we can directly request the court to auction or sell the above-mentioned property under no other circumstances after the seizure. Actually, it is possible.

Article 12 of the Provisions of the Supreme People's Court on the Attachment, Seizure and Freezing of Property in Civil Execution of People's Courts "The People's Court may attach, detain and freeze all the property of the person subjected to execution and others, and notify the owner of * * * in time. * * * If someone agrees to divide all the property of * * * and it is approved by the creditors, the people's court may consider it valid. The effectiveness of sealing up, distraining and freezing after the division of the agreement and the property enjoyed by the person subjected to execution;

The people's court shall make an order to lift the seizure, seizure and freezing of other property that enjoys the share. * * * If someone brings a property analysis lawsuit or applies for the executor to bring a property analysis lawsuit by subrogation, the people's court shall allow it. Litigation during the suspension of property execution. "Look at this article, the first sentence says that the court can seal it up, and the second and third sentences are about how to deal with what may happen after the court seals it up.

In many cases, the spouse will take the above laws as the basis and claim that you must first "file an analysis lawsuit by subrogation", otherwise you can't directly execute the above-mentioned real estate. However, although the understanding of the above-mentioned legal provisions was not uniform before, the opinions of the courts are relatively uniform at present. A large number of cases have clearly considered that "applying for the person subjected to execution to file an analysis lawsuit by subrogation" is only a right given to you by law, not a legal obligation that you must fulfill. Even if you don't file an analysis lawsuit, you can apply to the court for direct execution of the above property.

As long as the share due to the spouse is retained, the legitimate rights and interests of the spouse will not be infringed. However, in practice, in order to promote the smooth implementation of the enforcement court, it is necessary to test the patience and wisdom of the legal person.

Idea 3 (This is a wrong demonstration! ! ): Apply for additional spouse as executor.

In practice, if Lao Lai's debt occurs during the marriage relationship, many people will take it for granted to directly apply for an additional spouse as the executor, so as to get it done in one step. However, unless there are explicit provisions (such as increasing the shareholders of a wholly foreign-owned company and increasing the shareholders with false capital contribution), other people cannot be easily added as executors. The third paragraph of Article 2 of the Notice of the Supreme People's Court on Standardizing the Execution Behavior in Execution and Effectively Protecting the Property Rights and Interests of the Parties stipulates that "if the person subjected to execution is directly changed or added in the execution procedure, it shall be strictly limited to the circumstances clearly stipulated by laws and judicial interpretations.

The people's courts at all levels should strictly follow the forthcoming "Provisions of the Supreme People's Court on Several Issues Concerning the Addition of Changes to Parties in Civil Execution" to avoid arbitrarily expanding the scope of additions to changes. 2065438+February 28, 2007 "Notice of the Supreme People's Court on Properly Handling Issues Related to Cases Involving Husband and Wife's Debt" directly stipulates that "a husband and wife who have no debts without trial procedures shall not bear civil liability."

In the execution procedure, the substantive examination of the court is limited, and there is no second-instance relief. If the spouse is directly ruled as the person to be executed, the spouse can't even guarantee the basic right to hold a trial (in principle, it is written in the execution procedure). Therefore, the execution procedure cannot and really should not directly add Lao Lai's spouse as the executor.

Can Lao Lai's spouse have a deposit? 1. Will Lao Lai affect the other spouse?

If one spouse breaches the contract, it will affect the other spouse if it is the same debt of the husband and wife, and the same debt will be repaid by the husband and wife with the same property.

The Supreme People's Court's explanation on the application of law in the trial of husband and wife debt disputes

Article 1 The debts incurred by the husband and wife with the same signature or the same intention after ratification shall be regarded as the same debts of the husband and wife.

Article 2 During the marriage relationship, the people's court shall support the creditor's claim on the grounds that the husband and wife are in the same debt because of the daily needs of the family.

Article 3 The people's court shall not support the debt incurred by one spouse in his own name during the marriage relationship that exceeds the daily needs of the family, and the creditor claims rights on the grounds that it belongs to the same debt, except that the creditor can prove that the debt is used for the life of the husband and wife, the production and operation of the husband and wife, or because the husband and wife have the same meaning.

Second, what are the ways to pay off debts?

(A) the normal way

The normal way is the method used by the debtor to perform the debt according to the agreement. The enterprise repays the bank loan in full by cash or bank deposit, and pays the goods payable by the supplier; Pay advance payment, etc. Provide products or services with appropriate quality and quantity.

(2) Special channels

The method used when the debtor's enterprise is unable to perform its debts due to insufficient temporary solvency or changes in agreed conditions. According to the specific situation, there are the following ways:

1, negotiation

It is a method that the debtor can't perform the debt due to the debtor's reasons, and after consultation with the creditor, the creditor gives in and agrees to postpone the repayment, thus exempting the debtor from the liability for breach of contract. Our country's laws encourage this way of resolving disputes. Because, on the one hand, it is conducive to maintaining good business relations between creditor-debtor enterprises; On the other hand, it can avoid the expenses generated by other ways. But this method is only used when creditors have sympathy or optimistic expectations for debtors.

2. Mediation

When the debtor is unable to perform the debt and reach an agreement with the creditor due to reasons, the method of mediating between the two parties and reaching a new agreement to solve the debt. The specific forms are: administrative mediation, arbitration mediation and judicial mediation. No matter what the specific form of mediation is, the mediation process must abide by the provisions of national laws and policies, and reach an agreement that does not violate laws and policies on the premise of voluntary participation by both parties.

3. Arbitration

Both parties shall submit the dispute to a third party or a professional arbitration institution that has no direct interest in the trust for arbitration, and both parties are obliged to implement the method of resolving the debt dispute. Although arbitration is not legally binding, as a legal arbitration system, it still has certain legal effect, that is, if one party fails to perform the award within the prescribed time limit, the other party may apply to the people's court for compulsory execution.

Step 4 judge

If both parties can't solve the debt dispute through consultation, one party brings a lawsuit to the court and requests the court to solve the debt dispute through trial procedures. As a result, the debtor will either perform the original debt or pay liquidated damages to the other party to compensate the creditors for the losses caused by the debt. It is a compulsory means, that is, a legally effective judgment, which the parties are obliged to perform, should be performed automatically. If it does not perform automatically, the executive organ of the people's court may execute it according to the application of the creditor or the transfer of the judicial organ.

If one spouse breaches the contract, it will have an impact on the spouse, mainly depending on whether the debt is the same as that of the spouse. If it is * * * with debt, it will have an impact. Creditors can claim creditor's rights from both husband and wife, and the debts are repaid by both husband and wife with property. such as