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.
Husband and wife divorced by lightning and sold their house to their son
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.
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.
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.
"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.
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.
(1) Conditions for exercising the right of cancellation of debts.
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.
The objective conditions are:
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.
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.
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.
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.
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.
So in this case, creditors can exercise the right of revocation to protect their legitimate rights and interests.