primary facts
Cheng Moumou and Li Moumou are husband and wife. Cheng Moumou and Feng Moumou began to live together outside marriage in June 2004 +065438+ 10. In that month, Cheng Moumou gave Feng Moumou a cash of 200,000 yuan to buy a car, and Feng Moumou used the money to buy a car and registered it in his own name. In June 2004, Cheng bought a house in Lanwan and paid 530,500 yuan to the developer. In April 2005, Cheng gave the house to Feng by changing the name of the contract, and the property right of the house was registered in Feng's name. From June 5438, 2005 to June 2006 10, Feng asked Cheng for funds on the grounds that the company needed registered capital, and Cheng paid Feng 3049928 yuan. On July 2, 2005, Feng signed a loan agreement with Zhang, and Zhang admitted that he actually received a loan of 2.9 million yuan.
In July 2006, Li Moumou appealed to the court of first instance, requesting an order: confirming that the property given by Cheng Moumou to Feng Moumou was invalid, and demanding that Feng Moumou return a car with the license plate number E A-FL385 and a blue bay house, and demanding that Zhang return 2.9 million yuan.
2
court decision
After trial, the court of first instance held that Feng Moumou and Cheng Moumou were very different in age. Knowing that he has a spouse, he still lives together as a lover and asks Cheng for cars, real estate and nearly 3.05 million yuan. Their behavior violates social morality and is not subjectively out of goodwill. Cheng Moumou gave a huge amount of property to Feng Moumou without Li Moumou's consent, which infringed on Li Moumou's legitimate property rights and interests, and his gift behavior was invalid. The third person, Zhang, knew that Feng had obtained the above-mentioned property through improper means, but colluded maliciously with Feng and transferred 2.9 million yuan to his name in the form of so-called long-term loan, which should be returned to Li. According to this judgment: (1) Feng Moumou returned the car and house to Li Moumou, and the transfer fee was borne by Cheng Moumou; (2) Feng Moumou returned Li Moumou 3049928 yuan; (3) Zhang is jointly and severally liable for the returned 2.9 million yuan; (4) Rejecting Li's other claims.
Feng Moumou and Zhang refused to accept the appeal. The court of second instance held that Cheng Moumou's gift to Feng Moumou should be judged separately according to the provisions of the Contract Law. The gift is the true meaning of Cheng Moumou, and the transfer registration has been handled, which should be considered as valid. Feng Moumou asked Cheng Moumou for funds of 3,049,928 yuan, which should be returned. The second-instance judgment upheld items (2) and (3) of the first-instance judgment, and revoked the first item, that is, Feng Moumou returned the cash but did not return the car and house.
A procuratorate protested that Cheng's act of giving the husband and wife's common property to Feng violated the legal principle of public order and good customs. Feng Moumou's acquisition of the disputed house and vehicle is based on his improper cohabitation with Cheng Moumou outside marriage, and his acquisition of the property is subjectively not in good faith and has not been paid, which does not meet the legal conditions for bona fide acquisition. The final judgment found that Cheng Moumou's gift to Feng Moumou's real estate and vehicle was valid, which was an error of applicable law.
The retrial court held that Cheng's unauthorized disposition of the joint property of husband and wife was invalid. Feng Moumou should return the consideration of 730,500 yuan for the vehicles and houses he purchased at that time and the funds he claimed were 3,049,928 yuan, and Zhang should be jointly and severally liable for the return of 2.9 million yuan he received.
three
Main viewpoints and reasons
During the trial of this case, there are two different views on the effectiveness of one spouse giving the same property to others without authorization.
The first view is: 1. The cohabitation between Cheng Moumou and Feng Moumou outside marriage violates public order and good customs, but the invalidity of this behavior does not mean that the gift is invalid. Cheng Moumou's gift to Feng Moumou should be judged separately according to the provisions of the Contract Law. According to the relevant provisions of the Contract Law, Cheng Moumou has completed the ownership transfer registration of the vehicle and real estate donated by Feng Moumou, so the gift should not be revoked. 2. Cheng's gift does not necessarily infringe the property rights of Li and his wife. Although the property obtained during the marriage relationship generally belongs to both husband and wife, Cheng Moumou, as both husband and wife, should enjoy the right to dispose of some property independently. Cheng Moumou and Li Moumou's husband and wife * * * have a large amount of property. In this case, part of the property separately disposed of by Cheng Moumou is smaller than that of husband and wife * * *, so the gift does not necessarily damage the property rights of Li Moumou and his wife * * *. Moreover, even if Cheng Moumou infringes on the property rights of Li Moumou and his wife, Cheng Moumou should be responsible for Li Moumou, not Feng Moumou. 3. Cheng Moumou's social status and economic status are higher than Feng Moumou's, and both of them are at fault for cohabitation with Feng Moumou outside marriage. If Feng Moumou is ordered to completely return the property donated by Cheng Moumou, it cannot reflect the punishment of Cheng Moumou as the main fault party. Therefore, in the case of ordering Feng Moumou to return monetary property, in view of the fact that the house and vehicle donated by Cheng Moumou have been registered in Feng Moumou's name, it should be considered that the gift is legal and valid, and Feng Moumou enjoys the ownership of the disputed house and vehicle.
The second view is: 1. The car purchase money and real estate given by Cheng Moumou to Feng Moumou belong to the same property of Cheng Moumou and Li Moumou. Cheng Moumou gave the above property to Feng Moumou without Li Moumou's consent, which violated Li Moumou's property rights. 2. Cheng Moumou gave the disputed house and vehicle to Feng Moumou based on the improper cohabitation relationship with Feng Moumou, which violated the legal principle of public order and good customs and was invalid according to law. 3. Feng Moumou's acquisition of the disputed house and vehicle was not in good faith and paid, but Cheng Moumou gave the disputed house and vehicle to Feng Moumou without consulting his wife Li Moumou for the needs of daily life, which should be considered invalid. 4. In order to ensure the consistency of the ruling results, since the monetary property given by Cheng Moumou to Feng Moumou is considered invalid, the gift of Feng Moumou's real estate and vehicles is also invalid. 5. Considering the good social orientation, it should also be considered that Cheng Moumou's behavior of giving Feng Moumou a free gift without consultation with Li Moumou, based on the improper cohabitation relationship outside marriage and not due to the needs of daily life, is invalid. 6. The judgment of the second instance found that the gift behavior was valid, and it was obviously inappropriate to judge the validity of the gift behavior only according to the Contract Law, leaving aside the principle of public order and good customs that should be followed in civil behavior in the General Principles of the Civil Law of China.
four
Opinion review
This case is a typical gift dispute between a spouse and a cohabitant outside marriage, which should be comprehensively considered from the aspects of law, reason and balance of interests between the parties.
1. Article 3 of the current Marriage Law stipulates: Is it forbidden for spouses to cohabit with others? Cheng Moumou cohabited with Feng Moumou outside marriage with a spouse, and his behavior violated the prohibition of marriage law, and his cohabitation relationship with Feng Moumou was illegal.
Second, marital property is based on the provisions of the law, resulting from the existence of marital relationship. In the absence of other property systems, husband and wife have the same property, not * * * *. According to the general principle that * * * is the same as * * *, during the marriage relationship, husband and wife * * * and property should be regarded as an inseparable whole, and husband and wife enjoy all * * * and property ownership without any share. Husband and wife can't divide their respective shares of * * *, and they have no right to ask for dividing their shares of * * * and * * for a period of time without major reasons. Husband and wife have equal right to dispose of the same property, which does not mean that husband and wife have half right to dispose of the same property. Only when the relationship between * * * and * * is terminated can the property of * * * be divided and their respective shares determined. Therefore, the behavior of one spouse giving property to others without authorization should be completely invalid, not partially invalid.
Although China's Marriage Law lacks the above specific provisions, Article 17 of the Judicial Interpretation of Marriage Law stipulates: Article 17 of Marriage Law is about? Husband or wife have equal rights to dispose of all the property of husband and wife? (1) Husband and wife have equal rights to dispose of the joint property of husband and wife, and either party has the right to decide the disposal of the joint property of husband and wife due to daily needs. (2) If one of the spouses makes an important decision on the common property of the husband and wife due to the needs of daily life, the husband and wife shall reach an agreement through equal consultation. Others have reason to believe that it was expressed by both husband and wife, and the other party shall not oppose a bona fide third party on the grounds of disagreement or ignorance. In this case, giving Feng a large amount of property is obviously not an act of dealing with the common property of husband and wife because of the needs of daily life. It gave Feng a vehicle, a house and money without the consent of his wife Li, which violated Li's property rights and interests, and the gift behavior should be considered invalid; Feng Moumou knew that Cheng Moumou had a spouse, lived with him outside marriage and received a lot of property. Obviously, it cannot be regarded as a bona fide third party.
Third, if the husband and wife dispose of the same property beyond the needs of daily life, the two sides should reach an agreement through consultation. Cheng Moumou alone gives a large amount of joint property of husband and wife to others, which is also unauthorized. In the case that Li did not know in advance and did not ratify it afterwards, according to the spirit of Article 51 of the Contract Law, unless the obligee ratified or punished the personnel, the punishment was invalid; Article 106 of the Property Law also stipulates that if a person who has no disposition right transfers real estate or chattel to the assignee, the owner has the right to take it back. ? When the property is occupied by others without legal basis, the owner has the right to demand the illegal occupier to return the property according to the recovery effect of the property right, and the injured party in the husband and wife can exercise the right of claim on the property, and ask the court to order him to return the property with his spouse and cohabitation outside marriage as co-defendants.
Fourth, it involves specific handling problems. The car and real estate that Cheng gave to Feng Moumou, whether it is the original or the corresponding money, are returned in different ways. The author believes that it can be generally divided into two situations: if the donor gives the recipient money to buy a house or a car, and it is registered in the name of the recipient, the recipient should return the corresponding money after the gift is confirmed to be invalid; If the donor changes the house or vehicle originally registered in his own name to the donee, the donee shall return the original house or vehicle.
Judging from the actual situation of this case, Cheng bought a car for Feng with a cash of 200,000 yuan and registered it under Feng's name. It should be less controversial to order Feng to return 200,000 yuan. The case of suing the house is a bit special. In June 2004, Cheng signed a house purchase contract with the developer, and paid 530,500 yuan for the house purchase. In April 2005, Cheng transferred the house to Feng and registered it in Feng's name. From a purely legal point of view, Cheng signed a purchase contract in June 2004 and paid the purchase price. It can be said that he has enjoyed the quasi-property right of the house, and it is logical that the purchaser on the purchase contract shall prevail when handling the house registration in the future. Therefore, it is reasonable for the court of first instance to order Feng to return the house to Li. The house that Cheng Moumou gave to Feng Moumou was purchased at a price of 530,500 yuan at that time, and now the house price has risen sharply. From the point of view that Cheng Moumou who is at fault is never allowed to get unreasonable benefits by living with others outside marriage, even if Feng Moumou is ordered to return, he should only return the car and house price paid at that time, and should not be ordered to return the house and vehicle in kind.
If Feng Moumou is ordered to return the disputed house, Cheng Moumou not only has no property loss, but can benefit from the value-added part of the house. This kind of demonstration effect is not conducive to the harmony and stability of marriage and family, and violates the legislative intention of marriage law.
Some people think that in real life, one party doesn't know that the other party has a spouse. By a mistress? This is not uncommon. This situation should be treated differently, right? By a mistress? The interests of one party should be protected. The author disagrees with this view. Does the trial practice belong to one party? By a mistress? This fact is hard to ascertain. In addition, emotional problems are not commercial activities, and what you pay may not be rewarded. When both parties are adults, they should clearly foresee the legal consequences of their actions.
Some people have raised the question, that is, whether a spouse gives a large amount of property to an extramarital lover without authorization belongs to the provisions of Article 4 of the Interpretation of Marriage Law (III)? Transfer marital property? Situation?
According to the dictionary, transfer? The term refers to changing position from one party to another; What else is there? Change? Meaning. The author thinks that the behavior of one party giving a large sum of money to an extramarital partner without authorization overlaps with the concept of transferring the same property, which should be regarded as the situation in Article 4 of Judicial Interpretation of Marriage Law (III), that is, it constitutes a major cause for the husband and wife to divide the same property, and the other party can request to divide the same property during the marriage relationship.
five
Disposition opinion
It is illegal for a husband and wife to live together with others outside marriage, which violates the prohibition of marriage law.
During the marriage relationship, both husband and wife enjoy * * * ownership of the same property, regardless of share. When a husband and wife dispose of the same property except for the needs of daily life, they should reach an agreement through consultation, and neither party has the right to dispose of the same property alone. If one of the spouses gives property to others beyond the needs of daily life without authorization, the gift shall be deemed invalid; The people's court shall support the request of the other spouse to return the property on the grounds of infringing the property right of * * * *.