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Chapter 6 Questions and Answers about Marriage and Inheritance (5)
During the existence of the husband-wife relationship, either the husband or the wife has the right to make decisions on daily living expenses, but such daily expenses should be reasonable or necessary.Such as supporting the elderly, raising children, medical expenses of family members, etc., if there are external debts due to the above expenses, no matter whether the debt is jointly committed by the husband or wife, and whether the other party recognizes it, it should be recognized as a joint debt of the husband and wife, unless there is an agreement between the husband and wife.But we should see that with the continuous development of our country's economy and the continuous improvement of people's living standards, the scope of "daily life expenses" is becoming wider and wider, and it is no longer limited to firewood, rice, oil, salt, sauce, Vinegar, tea these basic necessities of life.For example, ten years ago, mobile phones were definitely a luxury item for ordinary people, and the expenses of purchasing mobile phones for an ordinary family cannot and should not be considered as daily expenses.But now, to a certain extent, mobile phones have changed from luxury items to daily necessities, and the expenditure on purchasing mobile phones can certainly be considered as a reasonable daily household expenditure.Another example is the expenses of daily household appliances such as refrigerators, air conditioners, TV sets, washing machines, etc., which can also be recognized as daily household expenses according to different situations, such as debts, which are generally recognized as joint debts of husband and wife.But which expenses for property purchases are reasonable or necessary expenses in the joint life of husband and wife. For example, refrigerators may be daily necessities in some areas, but may still be luxury goods in some areas.Another example is that in the same area, two families with an annual income of 3 yuan and an annual income of 30 yuan also buy a family car. For the former, such expenditure should be unreasonable and unnecessary. Agree to be indebted for this, within the husband and wife, this debt should not be considered as a joint debt of husband and wife; but for the latter, such expenses, whether necessary or not, can be regarded as reasonable family expenses, even if one of the spouses has not obtained the consent of the other Therefore, debts should also be recognized as joint debts of husband and wife.

Therefore, we believe that the criteria for judging whether a certain item of expenditure is reasonable or necessary for a family’s daily life should not be absolute. It should be comprehensively considered and treated differently according to the economic development status of different regions and the living conditions of different families, so as to correctly determine the couple’s debts. nature.

As far as this case is concerned, whether it is a debt is not determined according to the man's will, but according to the circumstances at that time.If the man's parents indicated that it was a gift when the real estate was purchased, it is a gift.If there is no indication that it is a gift, it cannot be recognized as a gift, and should generally be treated as a loan.This should be determined based on the evidence of both parties. If the man signs the IOU, the general court will handle it as a debt.

At the same time, Article 22 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (II) stipulates: "If the parents contribute to the purchase of a house for both parties before the parties get married, the contribution shall be deemed as a personal gift to their children. , except where the parents expressly expressly donate to both parties. After the parties get married, if the parents contribute to the purchase of a house for both parties, the contribution shall be deemed as a gift to both husband and wife, unless the parents expressly expressly expressly donate to one party.”

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The following debts cannot be recognized as joint debts of husband and wife, and should be paid off by one party with personal property: (1) Debts agreed to be borne by the husband and wife; (2) Debts borne by relatives and friends without the consent of the other party. (3) One party raises funds independently to engage in business activities without the consent of the other party, and its income is not used for the debts incurred by the common life.

16. In a marriage lawsuit, how to prove personal property?

Before Xiao Wang and Xiao Li got married, Xiao Wang's family bought various furniture and household appliances for Xiao Wang (the invoice date was before the marriage). Half a year after the marriage, her husband Xiao Li was imprisoned for criminal offenses and compensated the victim 10 yuan. The court must enforce it.

So in this case, should the 10 yuan be paid off with common property, whether all kinds of furniture and electrical appliances are considered common property, and if it is personal property, how should Xiao Wang prove it?
Analysis according to law
The so-called personal property of husband and wife refers to the property owned by both husband and wife before marriage and other unique property of husband and wife. Article 18 of the "Marriage Law" stipulates: "In any of the following circumstances, it is the property of one party, unless otherwise agreed by the two parties: ([-]) pre-marital property of one party; ([-]) medical expenses obtained by one party due to physical injury, Living allowances for disabled persons and other expenses; ([-]) property determined in the will or gift contract to belong only to the husband or wife; ([-]) daily necessities exclusively for one party; ([-]) other properties that should belong to one party.

Other property that should belong to one party shall include property dedicated to one party’s occupation, work and spare-time study, hobbies, hobbies, etc.; subsidies of a personal nature, welfare property, personal insurance premiums, medical expenses, disability expenses, health care expenses, etc. Fees, etc.; honorary prizes, medals, etc. obtained by one party in social contribution; both parties agree to be personal property.

Article 19 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (18) stipulates: "Article No. [-] of the Marriage Law stipulates that the property owned by one party shall not be transformed into a joint property of the husband and wife due to the continuation of the marriage relationship. Property. Unless otherwise agreed by the parties.” It can be seen that the marriage law of our country stipulates that the property of husband and wife follows the agreement if there is an agreement, and the law if there is no agreement.

In this case, if the date of the invoice provided by Xiao Wang was before the marriage, it can be determined that these properties are Xiao Wang's personal property based on other evidence.

In addition, according to the law, personal debts of husband and wife refer to the debts that the husband and wife agree to bear personally or the debts that one party bears when they are engaged in unrelated family life.Mainly include: (1) pre-marital debts of one spouse; (2) one spouse without the consent of the other party, arbitrarily funding the debts of the person who has no support obligations; (3) one spouse without the consent of the other party, independently raising funds to engage in production or business activities (4) The property that is determined to belong to only one party in the will or gift contract, and the accompanying debts shall also be solely borne by the party accepting the will or gift; ( 5) Debts that the husband and wife have agreed to be borne by individuals according to the law; (6) Debts incurred by one spouse due to personal unreasonable expenses, such as gambling, drug use, and alcohol abuse; (7) Other debts that should be borne by individuals according to law Debts incurred for criminal acts.

Therefore, the criminal compensation borne by Xiao Wang's husband should be his personal debt.

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To prove personal property, the most troublesome way is to notarize pre-marital property:

The first step: the parties should prepare the following materials: (1) personal identification.Such as ID card, household registration booklet, and if you are married, you must also bring your marriage certificate. (Married can also apply). (2) Proof of property ownership related to the agreed content.Such as the real estate certificate, the purchase contract without the property right certificate, payment invoices and other certificates that can prove the property attributes. (3) The agreement has been drafted by both parties.The content of the agreement generally includes: the basic personal information such as the name, gender, occupation, and address of the parties, the name, quantity, value, status, and ownership of the property, and the principles for the use, maintenance, and disposal of the above-mentioned pre-marital property, etc.Generally, the signatures and contract date of both parties are vacant, and the notary will sign in front of the notary after the notary has reviewed and revised the agreement.

Step [-]: After preparing the above materials, both parties must personally go to the notary office to apply for notarization and fill out the notarization application form.It will not be accepted to entrust another person to act as an agent or to do the notarization of pre-marital property by one person.

Step [-]: After the notarization application is accepted by the notary, the notary will review the content of the property agreement, examine the proof of property rights, and ask the parties whether the contract has been deceived or misled. The parties should truthfully answer the notary’s questions, and the notary will Perform the necessary legal notification obligations, and inform the parties of their legal obligations and legal consequences after signing a property agreement.After the parties cooperate with the notary to complete the transcript of the notarization conversation, they sign the transcript for confirmation.

Step [-]: Both parties sign the prenuptial property agreement in front of the notary.So far, the procedures for notarization of pre-marital property have been completed.

17. Due to the "mistress" divorce, the heroine demanded to pay compensation, can the records of the police station be used as evidence?

A girl named Jia lives in a certain garden. Both she and her husband are university graduates. In September 1993, she married her husband Guo.Jia said that her husband was lazy after marriage, and the two often had conflicts over trivial matters in life. In February 9, after Jia gave birth to a daughter, her husband ignored the child for a long time, and swept away all the family's property in early 1998. deposits and stocks.

At the end of 2004, Jia, a woman whose husband was nowhere to be seen, heard that someone had seen her husband in Village H and lived with a woman.In desperation, Jia reported the case to the police station and asked the police to investigate and deal with the fact that her husband had stolen property.Later, her husband Guo and his cohabiting woman, He, were taken to the police station for questioning. In the transcript of the interview, He admitted that Guo had come to her residence whenever he had time for half a year, and that the two had a sexual relationship. And she also knew that Guo had a wife.

Ms. Jia believed that her husband had been living with Ms. He illegally for a long time, which seriously hurt her feelings. In April 2005, she brought her husband to court, asking the court to divorce her and her husband, and asked for 4 yuan in damages; the daughter they had in marriage should be raised by herself, and she asked her husband to pay 10 yuan a month in child support, up to 2000 yuan. One-time payment until the child is 18 years old.The transcript became the key evidence, but during the trial, Guo did not show up at all, nor did he have any representative to defend.After the trial, the court held that the defendant Guo lived with others after marriage, which seriously hurt the couple's relationship, and the plaintiff, Jia, should be allowed to divorce her request for divorce.Regarding the damages requested by Jia, the court believes that because of the transcript evidence of the police station, "the reason is justified and should be supported."

Finally, the court ruled: Jia and Guo were allowed to divorce; the child born in marriage was raised by the mother, and Guo paid the child support in one lump sum (1000 yuan per month); the commercial house shared by the husband and wife belonged to the plaintiff, Jia, and was supplemented by Jia. Guo's real estate discount; the defendant Guo paid 3.5 yuan in damages to the plaintiff Jia.

Analysis according to law
The investigation record is a record of the investigation made by the judiciary and litigation representatives when they ask citizens who know the case to find out the facts of the case.Investigation transcripts are an evidence system formed in my country's long-term judicial practice, which plays an important role in fixing evidence and ensuring the smooth progress of cases. The "Regulations on Evidence" strictly restricts the conditions for the use of written testimony, which is obviously influenced by this judicial concept.However, the introduction of the judicial interpretation did not bring about a unified understanding of the investigation records.

Paragraph 63 of Article 1 of the "Civil Procedure Law" stipulates: "There are the following types of evidence: ([-]) documentary evidence; ([-]) physical evidence; ([-]) audio-visual materials; ([-]) witness testimony; Six) appraisal conclusion; (seven) investigation record.” It can be seen that the legislation has not yet defined the investigation record.We believe that investigation records are neither official documents in documentary evidence nor witness testimony. They have some unique characteristics and belong to the category of written evidence.

Investigation transcripts have their own unique characteristics:
1. The legal nature of the subject of evidence collection.Investigating and making transcripts from relevant personnel who understand the case must be carried out by relevant statutory subjects, and there are strict subject restrictions.

2. The objectivity of the production process.The content of the record must be consistent with the statement of the person under investigation, and the content of the record must be checked by the person under investigation.

3. The subjectivity of making content.Depending on the subject of the evidence collection, the content of the record will be different. For example, when the investigator listens to the statement of the person under investigation, he may make detailed notes on some content that he thinks is relevant to the case, and briefly notes some content that he thinks is irrelevant. Or not, the identification of relevant content will inevitably be somewhat different due to differences in the subjective understanding of investigators.In addition, depending on the subject of the investigation, the emphasis on evidence collection is also different, and it is inevitable to artificially choose the content.

4. Standardization of production requirements.There are certain format requirements for investigation transcripts, standard signature and printing requirements, and statutory requirements for the number of investigators.

In this case, the investigation records of the police station can confirm the fact that Guo had "a mistress", so they can be used as evidence.

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The source of the evidence in the investigation transcript has a relatively large impact on the content. For example, the evidence obtained by the agent may have trade-offs or even be untrue for the benefit of the parties due to the different angles taken when collecting evidence, and its probative force is relatively weak. The transcripts taken by other neutral state agencies are weaker.On the contrary, the evidence obtained by neutral agencies such as some courts, public security, and consumer associations is relatively more probative than the records obtained by agents.

18. Can the criminal record of the public security organ be used as evidence in a divorce lawsuit?
After Qian and Zhao got married, her husband, Zhao, often did not go home in 2004. In 2006, Zhao and his mistress had a dispute with others while drinking outside, and Zhao injured others to death.After the accident, Zhao was at large and has been wanted by the public security organs to this day.Qian learned from the investigation of the public security agency that Zhao was "taking care of a mistress" outside, so he filed for divorce in the court and demanded 6 yuan in spiritual compensation.

After the court accepted the case, it retrieved part of the transcripts of Zhao's case from the public security organ. Witnesses and Zhao's lover all confirmed the fact that Zhao lived with his lover outside the home.

The court adopted the transcripts of the public security organ and believed that Zhao was cohabiting with others outside the home, and Qian proposed that the divorce met the legal divorce conditions based on this, and the divorce was granted.On the issue of property division, the court awarded the house and daily necessities to the woman based on the principle of taking care of the party without fault, and at the same time ordered Zhao to pay his wife 2 yuan in mental compensation.

Analysis according to law
As long as it can prove the real situation of the case, it can be used as evidence. Therefore, in this case, although it is a transcript of a criminal case, it can still be used as evidence in a civil case, as long as it meets the requirements of objectivity and relevance of the evidence.

First, look at whether the factual content reflected in the transcript and the connection between it and the facts of the case are objective.Secondly, it depends on whether the content reflected in the transcript is related to the case or not, and whether it has practical significance in proving the facts of the case.Third, check whether the content reflected in the transcript has a legal form, and whether the production of the transcript and the collected content are carried out in strict accordance with the law.

Investigation transcripts play an important role in our country's litigation. They are a kind of evidence system formed in my country's long-term judicial system. They have the following functions: (1) Fix the evidence of the case and reproduce the factual process of the case.For example, after the occurrence of a public security case, the public security organ investigates and collects evidence from insiders in a timely manner, which is conducive to fixing the facts of the case.In the case that some evidence may be lost or difficult to obtain in the future, such as witnesses who are critically ill or go abroad, investigation transcripts are also an important way to preserve evidence. (2) Investigation transcripts are conducive to ensuring the smooth progress of litigation activities.In some cases, the evidence submitted by the plaintiff and the defendant is evenly matched in terms of probative strength, and the evidence is contradictory and frictional, making it difficult to choose. The court initiates an investigation procedure to collect objective, comprehensive and true records, which is conducive to timely Close the case and ensure the smooth progress of litigation activities.

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Investigation transcripts often do not exist individually in a case, and attention should be paid to the observation and judgment of the connections between individual pieces of evidence.On the premise of comparability, the review evidence is consistent. If all the investigation transcripts point to the same fact more consistently, that fact can be deemed true.If it is a fact pointed to by a small number of investigation transcripts, the credibility is relatively poor.

19. Can a wedding video be used as evidence in a divorce lawsuit?
Wedding videos have special commemorative significance for newlyweds.However, in a divorce case heard by a certain court, the wedding video played another role and became effective evidence to prove the facts of the case.

In December 2005, Lin and Wu registered their marriage. After the wedding ceremony, they lived together for more than ten days, but there were several quarrels and conflicts due to personality differences. In January 12, Wu returned to live with her natal family.After the two separated for 2006 months, Lin sued to the court and asked for a divorce from Wu.

During the trial, Wu agreed to the divorce, but asked Lin to return the refrigerator and Lianbang chair that her natal family had given her when she got married, on the grounds that the dowry items belonged to personal property before marriage.Lin refused to approve Wu's claim, claiming that the items mentioned by Wu had never been in his home.Since Wu could not provide the corresponding purchase bills and the evidence of delivery of this part of the property to Lin, the court did not find these items mentioned by Wu when inspecting the property in Lin's home.

Just when Wu was about to bear the legal consequences of not being able to provide evidence, she showed the wedding video of the two when they got married.The wedding video recorded that the above-mentioned property claimed by Wu was in a certain place in Lin on the day of the wedding.In front of the wedding video, Lin changed his words and said that he bought these items for his marriage, which was contradictory to what he said before, "I never had these items in my home", and he couldn't justify himself.Therefore, the court did not accept Lin's statement.

The court finally determined that Wu's claim to request Lin to return his dowry items was established, and Wu's claim should be supported.Accordingly, the court made a judgment according to the ascertained facts: the plaintiff and the defendant were allowed to divorce; at the same time, Lin was ordered to return all of Wu's dowry items within 5 days after the judgment took effect.After the verdict was pronounced, neither party appealed.

Analysis according to law
(End of this chapter)