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02 18

夫妻闪电离婚意在沛公

  • 发布日期: 2019-02-18

丈夫常年做生意在外欠债68万余元,突然一日夫妻两人离婚,妻子将名下的房产转卖给儿子。8位债主集体讨债,声称:离婚是恶意串通只为规避债务。而妻子则说:“我们早有协议,婚内各有各的财产。”,本案二审在市中院21号法庭组织询问。
 
The husband owes more than 680,000 yuan in debts for business all the year round. Suddenly one day, the husband and wife divorced, and the wife sold the property to her son. Eight creditors collectively collect debts, claiming that divorce is malicious collusion in order to avoid debts. And the wife said, "We have an agreement, each has its own property in the marriage." The second instance of the case was organized by Court 21 of the Municipal Intermediate Court.
 
夫妻闪电离婚,房子卖给儿子
 
Husband and wife divorced by lightning and sold their house to their son
 
60岁的谢祥一直在焦作做粮食生意,从2002年6月至2007年1月,他先后向龚丽、陈香和张平等8人借款,金额共达68万余元。
 
Xie Xiang, 60, has been doing grain business in Jiaozuo. From June 2002 to January 2007, he borrowed money from Gong Li, Chen Xiang and Zhang Ping for more than 680,000 yuan.
 
2007年10月,几名债主发现,谢祥和其妻路林的手机关机,不辞而别,而他们位于焦作的一处房产也已易主。
 
In October 2007, several creditors found that Xie Xianghe and his wife Lulin had left their mobile phones without saying goodbye, and their property in Jiaozuo had also changed ownership.
 
债主们几经查找,找到了他们位于管城区的一处房产(210.22平方米),但这处房产已于2007年11月份由路林以73万余元的价格过户给儿子谢华,而谢华则准备再次以95万元的价格卖掉房子。
 
After several searches, the creditors found a property in Guancheng District (210.22 square meters), but this property was transferred from Lulin to Xiehua for more than 730,000 yuan in November 2007, while Xiehua was ready to sell the house for another 950,000 yuan.
 
“他们两口一个礼拜内办了离婚协议、房产过户协议,路林还把谢祥的户口迁到了自己妈妈家。”龚丽说,几名债主一致认为,谢祥和路林闪电离婚,卖房子的做法实际上是恶意串通好了逃避债务的做法,遂诉至法院,要求撤销这对母子间的购房合同。
 
"Within a week, the couple had a divorce agreement and a property transfer agreement. Lu Lin also moved Xie Xiang's account to his mother's home." Gong Li said that several creditors agreed that Xie Xianghe and Lulin were divorced by lightning and that the practice of selling houses was actually a malicious collusion to evade debts, so they sued the court to request the cancellation of the purchase contract between the mother and son.
 
笔者认为我国合同法第七十四条规定:因债务人放弃其到期债权或者无偿转让财产,对债权人造成损害的,债权人可以请求人民法院撤销债务人的行为。债务人以明显不合理的低价转让财产,对债权人造成损害,并且受让人知道该情形的,债权人也可以请求人民法院撤销债务人的行为。但是因该法条规定过于简单,导致在实践中运作较为困难,最高人民法院虽然在《关于适用合同法若干问题的解释(一)》中对此作了进一步说明,但对于债权人撤销权适用中相关问题仍未明确规定,因此我们有必要对债权人撤销权予以探讨。
 
The author believes that Article 74 of the Contract Law of our country stipulates that if the debtor abandons his due creditor's rights or transfers property gratuitously, causing damage to the creditor, the creditor may request the people's court to cancel the debtor's act. If the debtor transfers the property at an apparently unreasonable low price, causing damage to the creditor and the assignee knows the situation, the creditor may also request the people's court to cancel the debtor's act. However, because of the simplicity of the provisions of this law, it is difficult to operate in practice. Although the Supreme People's Court has further explained this in the Explanation (1) of Several Questions Concerning the Application of Contract Law, the relevant issues in the application of creditor's revocation right are still not clearly stipulated. Therefore, it is necessary for us to discuss the creditor's revocation right.
 
(一)债的撤销权的行使条件。
 
(1) Conditions for exercising the right of cancellation of debts.
 
由于债务人实施的不正当处分其财产的行为,可以是无偿的,也可以是有偿的,故债的撤销权的行使条件分为主观、客观条件两个方面。
 
Because the debtor's improper disposition of his property can be either gratuitous or compensatory, the conditions for exercising the right of cancellation of debts can be divided into subjective and objective conditions.
 
其客观条件是:
 
The objective conditions are:
 
第一、债务人实施的危害行为发生在债权合法成立后,消灭之前。债权成立后,消灭之前是债权存续期间,只有债权存在,才能必要保护,同时,债权须是合法的才受法律保护,非法的债权是法律所禁止的,谈不上保护。
 
First, the harmful acts committed by the debtor occur after the legal establishment of the creditor's rights and before their elimination. After the establishment of creditor's rights, before the extinction of creditor's rights, it is necessary to protect the creditor's rights only if they exist. At the same time, creditor's rights must be legitimate before they are protected by law. Illegal creditor's rights are prohibited by law and can not be protected.
 
第二、债务人实施了法律上处分财产的行为。债务人处分自己的财产的行为,可分为事实行为和法律行为。事实行为,如债务人消耗自己的财产行为,不涉及第三人,不涉及效力问题,事实行为是债务人使用其财产满足其正当生产、生活需要的行为,是法律所允许的,不应加以干涉。法律上的行为,如放弃到期债权,转让财产,不论有偿、无偿均是债务人与第三人之间的行为,就涉及行为的效力问题,若该行为导致债务人的清偿能力不当减弱,从而危害债权人的债权时,就会导致对债权人的损害,放谢这类行为,势必对保护债权不利,有必要对此类行为设定一定的界限,赋予债权人一定的权利。从各类权利的功能看,赋予债权人相应撤销权,能促使债务人清偿债务的能力恢复原状,自然是一种较好的选择。
 
Secondly, the debtor has carried out the act of disposing of property legally. The behavior of the debtor in disposing of his own property can be divided into factual and legal acts. Factual acts, such as the debtor's behavior of consuming his own property, do not involve a third person or the issue of validity. Factual acts are acts of the debtor using his property to meet his legitimate production and living needs, which are permitted by law and should not be interfered with. Legal acts, such as abandonment of creditor's rights due and transfer of property, whether paid or unpaid, are acts between the debtor and the third party, which involve the validity of the act. If such acts lead to improper weakening of the debtor's liquidity and thus endanger the creditor's rights, it will lead to damage to the creditor. Releasing such acts is bound to be unfavorable to the protection of creditor's rights, and it is necessary to do so. This kind of behavior should be limited and creditors should be given certain rights. From the function of all kinds of rights, it is a better choice to give creditors the right of rescission, which can promote the debtor's ability to pay off debts to restore the status quo.
 
第三,债务人实施的行为已发生法律效力。债务人实施的放弃到期债权,无偿转让财产等行为,只有已发生法律效力,才能导致债务人财产的减少,影响其偿债能力,才可能导致对债权的损害,才有行使撤销权的必要。若债务人实施的处分其财产的行为是无效的,其自始无效,按照我国法律规定,处理无效行为的原则是返还财产,债务人的财产应恢复原状,其清偿能力不受影响,也不会损害到债权。
 
Thirdly, the debtor's actions have taken legal effect. Only when the debtor's abandonment of creditor's rights due and the transfer of property without compensation have legal effect can the debtor's property be reduced, its ability to pay debts be affected, the damage to creditor's rights may be caused, and it is necessary to exercise the right of revocation. If the act of disposing of the debtor's property is invalid, it is invalid from the beginning. According to the law of our country, the principle of dealing with the invalid act is to return the property. The debtor's property should be restored to its original state, and its liquidation ability will not be affected, nor will it damage the creditor's rights.
 
第四、债务人实施的行为是危害债权的行为,对债权造成损害。危害债权人对债权造成的损害,主要是指债务人减弱或者丧失其清偿能力以致无力履行债务,满足债权。主要表现为:减少财产或在财产上增加负担,如放弃到期债权即债的免除,无偿转让财产,为他人提供担保或在自己的物上设置限制物权。
 
Fourthly, the debtor's actions are harmful to the creditor's rights and cause damage to the creditor's rights. Damage to creditors'rights mainly refers to the debtor's weakening or losing its solvency so as to be unable to perform the debt and satisfy the creditors' rights. The main manifestations are as follows: reducing property or increasing the burden on property, such as waiving the creditor's right at maturity, transferring property free of charge, providing guarantee for others or setting up restrictive real right in one's own property.
 
作为实施的主观条件是:债务人与第三人实施危害行为时主观上有恶意。债务人与第三人在实施危害行为时明知其行为可能引起或降低债务人的履行能力,并危害债权,如债务人以明显不合理的低价转让财产,对债权人造成损害而受让人知道该情形。
 
As the subjective condition of implementation, the debtor and the third party are subjectively malicious when they commit harmful acts. When the debtor and the third party commit a harmful act, they know that their act may cause or reduce the debtor's ability to perform, and endanger the creditor's rights. For example, the debtor transfers property at an apparently unreasonable low price, causing damage to the creditor and the assignee knows the situation.
 
所以本案中债权人可以行使撤销权来保护自己的合法权益。
 
So in this case, creditors can exercise the right of revocation to protect their legitimate rights and interests.


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