When a couple operates a company overseas, they change, transfer or transfer their equity in the course of the company's operation. However, due to the investment or other problems, the investment is not real or in place. Is it reasonable for creditors to ask their spouses to bear joint and several liability? Is the debt formed by equity transfer the joint debt of husband and wife?
Consultation question: is the debt formed by equity transfer the joint debt of husband and wife?
In principle, the debt during the marriage is the joint debt of husband and wife. However, if the debt of equity contribution exceeds the daily life of the family, it does not belong to the joint debt of husband and wife. If the creditor claims that the debt belongs to the joint debt of husband and wife, it shall have the burden of proof to prove that the debt is used for the joint life, production and operation of husband and wife, or based on the expression of the joint will of husband and wife.
In practice, the key to judge whether it belongs to the joint debt of husband and wife is to use it for family life or joint operation of husband and wife, which needs to be judged according to specific cases and evidence collection.
During the duration of the relationship between husband and wife, if one party transfers its equity in its own name, and the other party does not know about the equity transfer and benefits from it, and the equity transferred is not used for the husband and wife to live together, the debt arising from the equity transfer shall not be regarded as the joint debt of the husband and wife.
Article 1064 of the civil code of the people's Republic of China, the debts incurred by both husband and wife by their joint signature or the subsequent ratification of one husband and wife, as well as the debts incurred by one husband and wife in their personal name for the daily needs of the family during the duration of the marriage relationship, belong to the joint debts of husband and wife.
Debts incurred by one of the husband and wife in his personal name in excess of the needs of the family's daily life during the duration of the marriage relationship do not belong to the joint debts of the husband and wife; However, unless the creditor can prove that the debt is used for the couple's common life, production and operation or based on the expression of the couple's common will.
In real life, the creditor can ask the debtor's husband and wife to sign together to confirm whether the debtor's husband and wife agree to raise debt, but one party has no way to raise debt for the couple's life or production. It is difficult for creditors to provide evidence, which leads to many common debts can not be identified.
The debt used for the illegal act is not the joint debt of husband and wife
The debt borrowed by one party due to gambling and drug abuse is not used for the couple's common life and family life, which belongs to one party's unreasonable personal expenditure and does not belong to the scope of the couple's common debt. Therefore, it should be borne by the debtor himself, and the other spouse should not bear the responsibility of repayment.