The Fourth Plenary Session of the 19th Central Committee of the Communist Party of China proposed to "improve the legal guarantee system for social fairness and justice", "ensure judicial fairness, efficiency, and authority, and strive to make the people feel fairness and justice in every judicial case.". Fairness and justice are not only reflected in the making of fair judgments, but also in the effective implementation of judgments. This is the inherent requirement and vivid embodiment of justice for the people.

In judicial practice, it has been a strong issue for the people to reflect that it is difficult for the parties to obtain a successful judgment but to be enforced. In order to solve the problem of difficult execution and get through the "last mile" of fairness and justice, we have conducted a thematic study on solving difficult execution problems, sharing and discussing the difficult issues encountered in the execution process and solutions. This article mainly discusses one of the methods to solve the difficult execution problem, namely, executing the property under the spouse's name of the person subjected to execution.

1、 Case Description

On April 16, 2019, the court of first instance issued a civil judgment in the case of plaintiff A v. defendant B and defendant A over a private loan dispute, ruling that defendant B should repay the principal of the plaintiff A's loan of 4.2 million yuan and pay interest. After the judgment took legal effect, on May 27, 2019, the court of first instance accepted the execution application of plaintiff A, and in September 2019, the court of first instance sealed up the house under the name of defendant B's ex-wife, that is, outsider C. The outsider C raised an objection to execution to the court of first instance. On September 22, 2020, the court of first instance made a ruling rejecting the outsider C's objection request.

The main reasons for the lawsuit of execution objection filed by the outsider C are as follows: (1) The outsider C and the defendant B registered for marriage on March 14, 2003. On May 29, 2018, after mediation by the people's court, the outsider C and the defendant B divorced, and the property involved in the case does not belong to the joint property of the husband and wife. (2) The outsider C and the defendant B signed the "Marriage Property Agreement" on January 10th, 2003, before their marriage, stipulating that the property under their respective names before marriage should be owned by each other, and that after marriage, the economic independence and income of both parties should still be owned by each other, that is, the husband and wife property system should be adopted. The real estate involved in the case is the personal property owned solely by the outsider C: the outsider C purchases it in his own name, one person signs a sales contract, pays the purchase price and repays the loan on his own, and the property right is separately registered in the outsider C's name.

Plaintiff A disagreed with the claim of outsider C and filed a lawsuit of subrogation with the people's court. The court has made an effective judgment confirming that the four properties registered in the name of outsider C belong to the common property of defendant B and outsider C, and defendant B enjoys 50% of the above property.

The court held that if an outsider files an objection to execution, the outsider shall bear the burden of proof in respect of the civil rights and interests that he enjoys in the subject matter of execution sufficient to exclude compulsory execution. In this case, the property involved in the case was acquired during the duration of the marriage relationship between the outsider C and the defendant B, and has been recognized as joint property by the civil judgment. The defendant B enjoys a 50% share of the property involved in the case. The opinion of the outsider C that he and the defendant B adopt a separate marital property system and that the house involved in the case is owned by either party lacks evidence, and the court will not accept it. According to Article 12 of the Supreme People's Court's "Provisions on the Sealing, Seizure, and Freezing of Property in Civil Enforcement by People's Courts", the people's court may seal up, seize, and freeze the property jointly owned by the person subjected to enforcement and others, and promptly notify the co owners. It can be seen that the parties' joint ownership of the subject matter of execution cannot, of course, exclude compulsory execution. "Defendant B is the person to be executed as determined by the judicial document, and he enjoys a 50% share of the property rights of the house involved in the case. Therefore, when Defendant B fails to fulfill the obligations determined by the effective legal document, the people's court has the right to take compulsory enforcement measures against the house involved in the case.".

2、 Lawyer Analysis

During the execution process, it is often encountered that there is no executable property in the name of the person subjected to execution, resulting in the inability to proceed with the execution. At this time, if there is executable property in the name of the spouse of the person subjected to execution, such as real estate, funds, stocks, company equity, bank deposits, salary income, and other properties, it is possible to open a new path for subsequent execution, allowing for the execution of the share of the husband and wife's common property belonging to the person subjected to execution. Its legal basis is the provisions of Article 12 of the Supreme People's Court's Provisions on the Sealing, Seizure, and Freezing of Property in Civil Enforcement by the People's Court. The people's court may seal up, seize, and freeze the property jointly owned by the person subjected to enforcement and others, and promptly notify the co owner.

When executing the property under the spouse's name of the person subjected to execution, the following issues need to be focused on:

(1)Property acquired during a non marital relationship may still belong to common property

In judicial practice, there are some properties that are not acquired during the duration of the marriage relationship. For example, if the spouse of the person subjected to execution has signed a house purchase contract and paid the full amount or down payment during the duration of the marriage relationship, and has obtained a property certificate and registered as personal ownership after the marriage relationship ends, the property can be recognized as the joint property of the original couple, and the applicant for execution can request that the share that belongs to the person subjected to execution be enforced.

(2)The spouse of the person subjected to execution cannot be directly added to the execution procedure

Since the date of implementation of the Supreme People's Court's Interpretation on Issues Related to the Application of Law in the Trial of Cases Involving Couple Debt Disputes (now repealed) on January 18, 2018, the people's court has adopted a more strict and prudent attitude towards the determination of conjugal joint debts. In particular, after the implementation of the Civil Code, it has further clarified the strict requirements for conjugal joint debts such as "joint signing of debts" and "subsequent recognition". Therefore, if the debt owed by one spouse is not recognized as a joint debt of the husband and wife, the spouse is not the joint debtor of the case, and the spouse of the person subjected to execution cannot be added as the person subjected to execution during the execution process.

(3) The applicant for enforcement shall provide the court with clues to the property of the spouse of the enforcement person

"The spouse of the person subjected to execution is not the person subjected to execution in the case, and the court may not directly inquire about the property clues in the name of the spouse of the person subjected to execution, otherwise there may be a suspicion of abusing power or infringing upon the privacy of citizens' property.". Therefore, the applicant for enforcement should take the initiative to provide the court with clues about the property of the spouse of the executor. Any clues that belong to or may belong to the common property of the person subjected to enforcement should be provided to the court, and the court should be required to take measures such as sealing up, seizing, and freezing. At the same time, the applicant should also provide necessary guarantees to enable the court to take measures such as sealing up, detaining, and freezing without any worries, which is more conducive to the implementation of the court's work.