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DivorcePartⅠWhat should be done to investigate the adverse party’s bank deposit?
Time reveals a person’s heart. This proverb is also suitable to the couples. Everything in the world is changing, so is the will of the people. When you discovered some day that your mate became unfamiliar, then the property items at home are also turned to be indistinct. It is naive to count on the other party’s conscience to confess the details of deposit at the court. Therefore, you must try to get over the property items belonging to the other party.
If the couple is still living under the same roof, you could find the other party’s deposit book or banking card as he or she is not on the alert, so as to copy relevant documents or account number. In case the other party’s account number is not available, you are also able to look up the information of deposit through the bank where the other party opened the account.
If you intend to acquire the deposit information of the other party via proper (legal) way, order for investigation issued by court or application for court investigation is needed. Most banks in Shanghai have completely refused the investigation carried out by the lawyers who have the investigation order issued by the court. Only the court is authorized to refer to the information concerning the deposit, while the court sometimes fails to attach an important attention on the rights and interest of the party due to its busy schedule and insufficient personnel. Therefore, the judges will refuse to look into the deposit in case the opening bank and account number are unknown. Theoretically, if someone’s ID No. is available, the deposit information thereof can be found out via the technology possessed by the bank. In fact a party’s deposit information could be reached if the bank in which the money is deposited is ascertained. However, we can’t say for sure that the person who handles the case will always give his/her best shot to carry out the investigation. In addition, bank deposit withdrawn prior to the court investigation could be hidden in such conditions as the inexperienced party or lawyer only ask the court to look into the bank deposit while the details of access time since the opening of the court are not investigated. So the judge rather looks up the deposit balance than looks into the history records of the withdrawals. So, we remind the party involved shall ask the court to print down the details of depositing & withdrawal on the application for court investigation.
In the process of practice, besides legal ways, looking up the deposit of the party involved through the bank insides is also accessible. However, it is unfavorable to adopt this method because it seriously goes against the Law of Commercial Bank.
PartⅡWhat is the method to draft the application to the court for the investigation of the adverse party’s bank deposit?
The model for investigation application:
Application for court investigation
To Shanghai Pudong New Area People’s Court:
For the Case you registered No.__（2005）PMYMCZ（66XX）concerning the after-divorce property disputes between plaintiff: Li Jun and defendant: Zhu Hong, the scope of common property comprises the focus of disputes herein. As specified by the law and regulations, the plaintiff is unable to collect the information concerning the bank deposit of his/her own accord. Therefore, application for court investigation is hereby carried out.
Name of account: Zhu Hong depositing/withdrawal at China Merchants Bank, Shanghai Branch as from October 1997 to July 31, 2005 (please see the detailed list of bank depositing/withdrawal)
Account No. __ of China Merchants Bank: 0021 3XXX
Address of China Merchants Bank，Shanghai Branch: 161 Lujiazui Road E., Shanghai; Zip code: 200120
Applicant:
August 7, 2005
We shall particularly indicate that the judge is needed to print out the “detailed list on depositing/withdrawal” in case of the application for the bank deposit investigation handled by the court. If such indication is not pointed out, the court only looks into the balance of the account No. involved. So, if the depositor has transferred a large sum of deposits before the investigation, the court is unable to discover it without the detailed list on depositing/withdrawal. Therefore, “detailed list on depositing/withdrawal” shall be especially marked as applying for court investigation. In case the court neglects such process, the applicant has the right to ask the court to make the thorough investigation once more, so as to avoid the leaving out of common property.
As putting into practice, some judges need the party involved providing not only the account No. but also the specific bank of deposit after the application for bank deposit investigation is submitted. In our opinion, it is improper. The only kind of opening account No. is enough for the specific information investigation. It’s unfair to ask the party involved to provide too much information he or she fails to collect. Maybe it is the reflection of some judges’ neglecting of duty. In case the said conditions occurred, the party involved may ask the court to issue the decision in writing on the basis of Regulations for Evidence. If the decision could not be accepted, the applicant may ask the same level court to review it or take other remedies.
Relevant case
Mr. Fan and Ms. Jiao registered at X District of Shanghai in 1993. Their son was born in 1994. In the year of 2003, the couple filed a divorced suit due to the disharmony. As conducting the divorce, a big chasm concerning the scope of common property existed between both sides. As claimed by Fan, nearly 200,000 Yuan the female party deposited at Construction Bank was transferred when the marriage bond was still existed, while Jiao argued that she never possessed the account at Construction Bank. Furthermore, she indicated that the male party indeed opened an account at construction bank, but the account No. was unknown. Because the male party failed to provide the detailed information of bank deposit, the court verdict, issued by Shanghai X District People’s Court, did not handle the matters relevant to the bank deposit for the lack of sufficient evidence offered by the plaintiff Fan. After divorce, Fan came across the account No. of the female party as cleaning the room. So, he once again filed a lawsuit to Shanghai X District People’s Court on the account of property entanglement. On the basis of banking investigation, the court found the female party conducted a lump-sum withdrawal of 180,000 Yuan from the bank in March 2003. Therefore, the court adjudicated this sum of money shall be a part of common property. Owing to female party’s bad intention for hiding of deposit during divorce suit, the female party shall return 110,000 Yuan to the male party.
Part Ⅲ What’s the solution if the adverse party’s equity securities are unknown?
China has boasted a rapid growth of investors at the stock market since 1990s. So around 30% of divorce cases we handled are referred to the division of shares.
In case the account of the other party at a security bourse is available, the lawyer could be authorized to apply for court investigation or the party can ask the court to make the investigation at securities firms directly. Investigation includes reviewing the confirmation of turnover balance or printing the confirmation of turnover balance directly at the opening bank.
Currently, China Securities Depository & Clearing Corp. has one branch in Shanghai and the other in Shenzhen, among which Shanghai branch is located in Shanghai Pudong Lujiazui Insurance Building, where the turnover information of all investors at Shanghai stock market could be inquired.
If the opening securities firm is unavailable, inquiry may be carried out via the ID number of the other party. Based on the ID number, the party can ask the court to make the investigation at China Securities Depository & Clearing Corp, Shanghai Branch or Shenzhen Branch. Thus, all turnover information of the other party could be found. However for the inquiry of account deposit thereof, the opening securities firm shall be found out. Then the party shall re-apply the court investigation for the confirmation of balance at the specific opening firm. Finally the stock value and balance inside the other party’s account could be checked up.
Generally speaking, what China Securities Depository & Clearing Corp provided is the true evidence. However, realistically we may encounter the fake evidence made by the securities firm. In 2003, we handled a divorce case in Xuhui District, Shanghai. For this case, our client was provided fiddled confirmation of balance by a securities firm (its license is now revoked by securities supervision commission). Such fake evidence was later found out via the check with the turnover confirmation of turnover balance of Securities Depository & Clearing Corp. The problem was tackled after the client informed the fake evidence to the securities supervision commission and the head office of the securities firm involved to cook the books. Therefore, we shall make accurate verification for both confirmations of turnover balance and the fund in account in case the major cases and large amount of money are involved. This is patricianly important for institutional investors.
Part Ⅳ What is the method to draft the application to the court for the investigation of the adverse party’s equity securities?
In a bid to put on trial equitably, save the lawsuit cost and shorten the duration of judgment, courts in Shanghai carry out the order of investigation system, which means that the lawyer who handles the case can apply for the order of investigation from the court to make the investigation. Meanwhile, relevant organizations and individuals shall offer the necessary supports to such investigation. The model for investigation application:
Application for court investigation
To Shanghai Xuhui People’s Court:
For the Case you registered No.（2005）XMYM（36XX）concerning the divorce disputes between plaintiff: Liu Jun and defendant: Zhao Hong, the scope of communal estate comprises the focus of disputes herein. As specified by the law and regulations, the plaintiff is unable to collect the information concerning the turnover of Zhao Hong by his own accord. Therefore, application for court investigation is hereby carried out.
Name of the account: Zhao Hong; Account No.: 409XXXX, Wantong Securities, Xingeng Rd. Branch, turnover & capital flowing information ranges from January 1 1999 to July 31 2005（please see the confirmation of balance concerning turnover and capital.）
Applicant:
July 17, 2005
At present the lawyers in Shanghai who are entitled with the orders of investigation to collect the evidence. In addition, the investigation shall be carried out by two lawyers jointly. Also, the copies of lawyer licenses shall be submitted to the court.
Part Ⅴ What kinds of information should we get when investigating the adverse party’s equity securities?
As looking up the information of stocks, the information concerning turnover and cash flowing of the referred person shall be checked at the same time. Generally speaking, the investors at stock market will set up an account at the Bank. When the capital shall be put into the stock market, they may transfer the money into the account. Therefore, as purchasing the shares, the capital in the account will be decreased, and vice versa. If the party involved intends to withdrawal the cash, the cash in the account could be withdrawn from the bank.
Relevant case:
Mr. Zhu married Ms.Liu in 1994. In February 2005 Zhu filed a divorce lawsuit at Shanghai X District People’s Court. In process of the lawsuit, turnover information of Liu comprises the focus of common property scope herein. For the plaintiff, the detailed turnover information concerning Liu is unknown, while he only found out the defendant used a large number of deposits to make the investment at stock market. After engaged, we acquired the ID number of Liu via the marriage license of the couple. As the mediation is fruitless, the case was submitted to Shanghai X District People’s Court. At the same time, the order of investigation was filed for the check of defendant’s turnover information at Central Securities Registration & Settlement Corporate, Shanghai Branch. The securities firm where Liu set up the account was found out. Therefore, we applied for the second investigation order from the court and made the investigation at herein directly, so as to print out the confirmation of balance during the period when the conjugal relation was still existed. Thus, we grasped the evidence that 200,000 plus Yuan was withdrawn by Liu a couple of months ago. Also, Liu on the court admitted the existence of the ready money. So, half thereof could be enjoyed by Zhu. Finally, the case handled by us was ended in a satisfactory way.
Part Ⅵ What’s the solution if the adverse party’s house property is unknown?
Someone may purchase the house property at local or non-local place on the condition that his/her spouse was unknown. Hiding and negation thereof will bring out the setbacks for the right claim of the other party.
According to present conditions such as network and legal system, it is not realistic to look into the house purchasing information of the other party in most cities only counting on the ID of the party involved. Even though the house property purchasing is known, it is still very difficult to find out the location of the house property.
If the information concerning the house purchasing is unknown, we may find it out in another way. For instance, looking into the capital flow of the other party, a large amount of capital outflow showed the money might be paid to the real estate company. If a fixed amount was withdrawn monthly from the account of the other party, maybe the money was paid for housing mortgage or the overhead of real estate. More or less clues could be found out if paying attention to the daily activities of the other party who may purchase the house property. If separation was existed or no weak point was found, you may track on the whereabouts of the other party who may purchase the house property and reach a conclusion after some investigations.
In the cases we handled the location of the housing was known, but the detailed location of the housing was unavailable. In this case, if the court investigation is not adopted, you could make the door-to-door investigation or wait for the appearance of the other party at the gate of the residential area. However, this way is not available in the event of large-scale residential area that has thousands of apartment buildings. So the best way to investigate is seeking for the assistance of the real-estate agency.
Now the letters of investigation made by the lawyers is not powerful because the lawyers are not entitled with the rights to make the investigation according to the Law of Attorney. Therefore, the lawyers could do nothing if they are turned down by the units that needed to be investigated. We shall not take it as the incompetence of lawyers due to the restriction of legal system or social reality. So, asking for help from the friends who work for the real estate agency was more useful than asking the lawyers to make the investigation. It didn’t violent the law, after all, every unit or individual has the obligation to give the evidence if the real information is available. The reason why sometimes the case is difficult to handle is that people always possessed the creed of “the less trouble the better.”
In case the social connection is unavailable both in real-estate agency and House Property Company, at the same time the personnel who hold the relevant information keep a negative attitude of “Let things drift if they do not affect one personally”, the court investigation could be applied. Generally speaking, the investigation order sealed by the court will make the House Property Company and real estate agency operate in coordination with the investigation. After all the legal representatives of the relevant units could be fined or detained due to “allegedly interfering with the execution of lawsuit”. Under such pressure, relevant units will offer the support to find out the specific number plate of the other party.
After acquiring the doorplate number, the party involved could find the registration information of house property at the house property transaction center on the strength of ID number and 30 Yuan. Shanghai is a modernized city; therefore, the public is endowed with more rights to know. For other cities, the reference of lawyer or even the court investigation is needed for the house property information.
Part Ⅶ What is the method to draft the application to the court for the investigation of the adverse party’s house property?
The format for the application of investigation order is as follows:
Application for the order of investigation
To Shanghai Xuhui District People’s Court:
For the Case you registered No.（2005）XMY（M）CZ No. 44XX concerning the after-divorce property disputes between plaintiff: Liu Tao and defendant: Yue Cheng, the scope of common property comprises the focus of disputes herein. As requested by real-estate agency, the plaintiff is unable to collect the information concerning the specific location of house purchased by the defendant during the period when the matrimonial relationship was stilled existed, such premises is located at the Linjiang Tianxia Residential area, lane X2, Puming Road. Therefore, application for court investigation is hereby carried out.
Purchaser: Yue Cheng Address of the purchased premises: Linjiang Tianxia Residential area, lane X2, Puming Road.
The origination may be investigated:
Developer: Shanghai Lu X Real Estate Co., Ltd.
Real Estate Management: Shanghai X Management & Development Company
Applicant:
July 18, 2005
However, in the places where the system of investigation order doesn’t exist, we can apply for the court investigation as well. The format of the application for court investigation is as follows:
Application for the court investigation
To Shanghai Xuhui District People’s Court:
For the Case you registered No.（2005）XMY（M）CZ No. 44XX concerning the after-divorce property disputes between plaintiff: Liu Tao and defendant: Yue Cheng, the scope of common property comprises the focus of disputes herein. As requested by real-estate agency, the plaintiff is unable to collect the information concerning the specific location of house purchased by the defendant during the period when the matrimonial relationship was stilled existed, such premises are located at the Linjiang Tianxia Residential area, lane X2, Puming Road. Therefore, application for court investigation is hereby carried out.
Purchaser: Yue Cheng Address of the purchased premises: Linjiang Tianxia Residential area, lane X2, Puming Road.
The origination may be investigated:
Developer: Shanghai Lu X Real Estate Co., Ltd. Add: (unavailable) Tel: (unavailable)
Real Estate Management: Shanghai X Management & Development Company Add: (unavailable) Tel: (unavailable)
Applicant:
July 18, 2005
Relevant case:
The matrimonial relation between Mr. Zhang and Ms.Liu was set up in 2001. At the end of 2002, Liu headed to U.K. for studying. In 2003 Liu heard former friend that Zhang bought an apartment in Shanghai Pudong New Area. In May 2005 Liu intended to file a lawsuit but failed to obtain the specific location of the premises Zhang bought with the common property. She only knew the residential area where the apartment located was named as Huasheng Tiandi.
Therefore, Liu authorized the lawyer to file the lawsuit for her and handled relevant certificate of entrustment. After accepting the case, the lawyer made the request for court investigation of the real estate agency that operated Huatian Shengdi. Based on the name and ID number of Zhang, the real estate agency only took around ten minutes to find out the specific doorplate No. of the premises Zhang purchased. Finally the premises were divided in the process of divorce lawsuit.
Part Ⅷ What should be done to investigate the adverse party’s insurance information?
With the progress of the Age, more and more families are endowed with the concept of insurance. Such insurance as property insurance and personal insurance are very popular among many families. Due to the disputes arising from the insurance, the inquiry and division of insurance benefits are looked upon as the focus during numerous divorce cases.
Household insurance is divided into property insurance and personal insurance. Generally speaking, property insurance has nothing to do with the personal relation, but connects with the property insured. Therefore, it may not give rise to disputes among divorce cases. However, the personal insurance does bring about the disputes because of the involvement with the personal benefits of the insured and beneficiary.
Currently, major insurers, which enjoy a high reputation, include China Life Insurance Company and American International Assurance, etc. The more information concerning the conclusion of insurance is necessary for the inquiry of the other party’s information, such as insurance certificate (agreement) number , conclusion date of contract and etc. In the area where order of investigation prevails, the lawyer can come to the legal department of relevant insurer for inquiry on the strength of the investigation order issued by the court.
Application for the order of investigationo Shanghai Pudong New Area People’s Court:
For the Case you registered No.（2005）PMYM（33XX）concerning the divorce disputes between plaintiff: Liu and defendant: Zhang, the scope of common property comprises the focus of disputes herein. As specified by the law and regulations, the plaintiff is unable to collect the information concerning the insurance information of defendant by his/her own accord. Therefore, application for court investigation is hereby carried out.
Insurance certificate number of Zhang at China Life Insurance Company Shanghai Branch on January 12: insurance contract 9964 P 000XX5 and relevant insurance documents.
The organization may be investigated:
China Life Insurance Company Shanghai Branch
Applicant:
July 23, 2005
In case the area where investigation orders system is unavailable, the direct court investigation may be investigated:
Application for court investigation
To Shanghai Pudong New Area People’s Court:
For the Case you registered No.（2005）PMYM（33XX）concerning the divorce disputes between plaintiff: Liu Fa and defendant: Zhang Zhengrong, the scope of common property comprises the focus of disputes herein. As specified by the law and regulations, the plaintiff is unable to collect the information concerning the insurance information of defendant by his/her own accord. Therefore, application for court investigation is hereby carried out.
Insurance certificate number of Zhang Zhengorong at China Life Insurance Company Shanghai, Branch on January 12: insurance contract 9964 P 000XX5 and relevant insurance documents.
The organization may be investigated:
China Life Insurance Company Shanghai Branch
Applicant:
July 23, 2005
Part Ⅸ What information shall we get from the reply of a insurance company?
After receiving the documents concerning the investigation from the relevant authorities, the insurers may, as requested by the judiciary, provided relevant information concerning the investigation. The following letter is replied by X insurer:
Letter for reply
To Shanghai Xuhui District People’s Court:
We have acknowledged the receipt of the investigation order issued by you No.44XX (2005) XMY (M) CZ. After reviewing, we made the following reply:
We hereby informed that Personal endowment insurance (Insurance Certificate No: 9984XX) XXX client deposited in our company was paid by means of lump sum. The accumulated fees accounted for RMB 100,000 Yuan. The insurance policy was valid currently.（see the annex on the articles of insurance agreement）.
XX Life Insurance Co., Ltd.
November 2, 2004
Also the insurers may give further information as requested.
For instance:
Concerning the interpretation for the insurance agreement of Mr. Zhang
Client: Zhang (ID No.: 310XXXXXXXXXXX) has insured information as follows:
Insurance contract No.: C9XXXXXX
Master contract of life insurance: tow all risk insurances and attached insurance for serious sickness
Attached contract: casualty insurance, payment of casualty insurance, income safeguard insurance for daily hospitalization, medical insurance for the compensation of hospitalization fees and additional medical insurance for the compensation of surgical fees
Insured: Zhang insured: Zhang; Beneficiary: Li
Effective date thereof: February 1, 2000
Annual payment information thereof:
2000-2001 10000 Yuan;
2001-2002 10000 Yuan;
2002-2003 10000 Yuan;
2003-2004 10000 Yuan;
2004-2005 10000 Yuan;
2005-2006 10000 Yuan.
Part Ⅹ What is the allocation of the interest gained from the contract of property insurance?
(1) Communal estate as the object insured
As specified by Article 17 of Marriage Law of the P.R.C, Communal estate shall cover the property insurance that was insured on behalf of one party or both parties, as the conjugal relation was still existed. Property insurance is regarded as the communal estate because the object insured is a part of communal estate. Therefore, husband and wife both enjoy the benefits thereof.
(2) Personal property of one party as the object insured
The communal estate shall not include the benefits of one party insured prior to the conjugal relations. Based on Marriage Law of the P.R.C revised in 2001, unless otherwise agreed by the couple, the personal property of one party prior to conjugal relation shall not be transferred as the communal estate. In case the personal property of one party prior to the conjugal relations was insured by use of the communal estate, half of the estate used for the payment of insurance shall be returned to the other party of the conjugal relation.
(3) Distribution of benefits as conducting the divorce while household property insurance is still effective
As conducting the divorce, the object insured may be transferred or the principal part of the contract may be modified. Based on the Insurance Law, the transfer of object insured shall be given the insured’s notice. With the authorization of insured, the contract shall be modified in conformity with the law. After the divorce is sentenced and the property is divided, the party who obtained the property shall change or dissolve the contract on the strength of the effective court verdict or investigation order in case property division is carried out by cash compensation. Meanwhile the party who obtained the property shall not be the party involved in the original contract or both husband and wife are the party involved herein. After the occurred insurance fees are deducted by the insurers, the remained shall be divided on the basis of communal estate. In case the contract is carried on with the approval of both parties, the appropriate procedures may be modified. The party who obtained the property by means of compensation shall pay the other party half of the insurance fees paid by both husband and wife. In the event that the sole insured of the original contract is the party who obtained the property by means of compensation, the insurance contract he/she concluded with the insurer shall be continually effective. However, the party who obtained the property by means of compensation shall pay the other party half of the insurance fees paid by both husband and wife. If the property division is carried out on the basis of physical size, both parties involved in the divorce case may modify or rescind the contract via the negotiation with the insurer.
Part Ⅺ What is the allocation of the interest gained from the contract of both family insurance and property insurance?
The dividend insurance for household property means that the insured household shall pay the insurer a certain amount of insurance deposit by stages. In case the accident occurred within the insured period, the insurer shall pay the insured economic damage. If there is no accident during insured period, all insurance deposits shall be returned to the insured after contract is mature. The household property insurance features long validity of the contract as well as a big sum of insurance deposit. The insurer collects the interest of insurance deposit as the insurance fees. Therefore, it is similar to bank deposit. Major difference between the two forms is that the interest of bank deposit is collected by the depositor, while the interest of insurance deposit is collected by the insurer.
As handling the divorce case, this kind of insurance may be modified or rescinded in accordance with the Insurance Law of the P.R.C , while the method of bank deposit shall not be used for handling such insurance. When rescinding the insurance contract, the remnant of the insurance deposit after requisite deduction shall be divided as common properties.
Part Ⅻ How to deal with the personal insurance contract when divorcing？
The personal insurance includes life insurance, casualty insurance and sickness insurance.
(1) One party of the conjugal relation is regarded as both the insured and the beneficiary
The judicial authority specifies that various personal insurances insured as conjugal relation is existed shall be possessed by the party who obtained benefits. The benefit used for casualty or sickness shall be closely related to the insured and regarded as the personal property thereof. Therefore, such benefit shall not be handled as the common property. Also, the insurance fees paid via the communal estate shall not be divided as common property. The solution is that the insured shall pay the other party half of the fees he/she insured.(2) One party of the conjugal relation is regarded as the beneficiary but not the assured
For instance, after married, Liu, and Zhang signed a life insurance contract for the beneficiary, among which the insured was Zhang while the assured was father of Zhang. Afterwards, Zhang obtained a large sum of benefits due to the death of his father arising from the accident. Soon the conjugal relation between Zhang and Liu was broken up. Liu intended to divide up the benefits of Zhang. So, the question is whether this sum of benefits shall be divided as common properties.
As suggested by the relevant judicial authority, Marriage Law of the P.R.C does not specify that the benefits of the life insurance shall be included in the estates by entirety. Though benefits the beneficiary enjoyed is similar to inherited or gifted properties to a certain extent. However, they are different as concerning the conditions of acquiring. For the benefits of life insurance contract, the beneficiary may obtained it free and without the shouldering of any duties, while the heir shall pay back the debt during ancestor’s lifetime as inheriting the property. Also the duties may be attached as the person obtained the property endowed. The life insurance contract indicates the exclusive property of benefits. Therefore, the benefits one party enjoyed as the beneficiary thereof shall not be divided as the estate by entirety.
(3) The life insurance contract is still effective as conducting the divorce
As conducting the divorce, various effective life insurances paid by common property shall be divided as the estates by entirety. When the conjugal relation is existed, one party may buy the insurance for other party or insured for himself/herself and make the other party as the beneficiary. During the conjugal relation, the insured shall be legally reasonable for the insurance benefits of the assured. As conducting the divorce, the rights and duties of the conjugal relation disappeared; also, insurance benefits between both parties are terminated. The surrender value shall be divided within the scope of common property. After divorce, the insured & assured is regarded as one side and beneficiary is regarded as the other side, in this case if one party fails to conduct the medication or rescission of the contract, the other party can obtain the benefits as the beneficiary after the occurrence of insurance accident. Such benefits acquired by the other party shall be regarded as personal property.
If the beneficiary is the insured himself or herself, or no beneficiary is indicated, the insurance contract could not be terminated. Both the insurer and insured are able to execute the contract continuously. But the insured shall pay the other party half of the insurance fees as compensation. If the beneficiary thereof is indicated as the other party, the insured shall ask the insurer to alter the procedures concerning the beneficiary.
Part ⅩⅢ How to allocate the interest gained from the personal insurance contract for the child?
As suggested by judicial authority, for the life insurance benefits of the minor children, the children enjoy all herein in case he or she is still alive. If the minor children are dead, the benefits shall be regarded as the inheritance and divided as estate by entirety.
For the effective insurance contract of minor children, it could be handled respectively with regard to the insured or the guardian. If the insured is regarded as the guardian of the minor children, the original contract could be carried out continuously. But it still remains a question that whether the other party shall compensate the insurance fees paid by the insured. The relevant judicial authority indicates the minor insured is regarded as the third party who enjoys the benefits. Therefore, the minor children rather than the parents shall be the beneficiary. If the insurance is paid by the personal property of one party, the final benefits shall be the possession of the minor children; such benefits have nothing to do with the other party of the conjugal relation. Therefore, the compensation may not occur in this case. If the beneficiary insurance contract indicated is the other party, the original may avoid the compensation via the alternation of beneficiary.
If the insurer is not the guardian, the party involved may negotiate with the insurer for the alternation of insured. In the event the negotiation is failed, the insurance could be terminated. The surrender value shall be divided up as the communal estate. Therefore, the compensation concerning the insurance fees is not existed in case the insured needs to be changed.
Part ⅩⅣ What’s the solution if the adverse party’s income is unknown?
For the divorce case, the earnings of one party or both parties play an important role in the definition on the scope of communal estate as well as cost of maintenance. As conducting the divorce lawsuit, communication between both parties is generally hard to be carried out. So, both parties are reluctant to reveal their own earnings. It is easier to carry out the investigation in case the couple has better understanding of each other’s earnings, while one party didn’t pay much attention to the earnings of the other party during conjugal relations. For such case, investigation for earnings is needed before the lawsuit. Method adopted for the investigation of the other party’s earnings are listed as follows:
(1). The lawyer conducts the investigation on the strength of reference issued by the law firm:
Generally speaking, on the basis of the reference issued by law firm, the lawyer can collect the information concerning the earning successfully from some large state-owned enterprises or government organizations. The lawyer is able to contact the labor earning department or the HR department of the enterprises at an early time, and then conduct the investigation via the lawyer license and reference issued by the law firm. The investigation reference shall be drawn as follows:
Shanghai X X Law Firm
Reference reserved for lawyer investigation
HSLDJ NO 004604
TO Shanghai Pudong New Area XX Administration Bureau:
We hereby refer lawyer X X (lawyer license No.:0915991155XX) to your finance section for the investigation of Ms Liu’s earnings as from July 1,2004 to July 1, 2005(the detailed payroll is needed).
Your kindly assistance will be appreciated.
Sincerely yours
(Duration of validity:)
Date:
Remark: the reference is only subject to the investigation conducted by the lawyer.
(2). Conducting the investigation via the court investigation order
In reality, the lawyer barely obtained the support from the relevant units for the legal investigation. Also, the lawyer investigation is out of the safeguard of related laws and regulations. Therefore, it is common for the lawyers to carry out failed investigation. The court investigation order (e.g. in Shanghai) could be applied in case failing to acquire the cooperation from relevant organizations. The court investigation order has the force of constraint on the organizations to be investigated. As specified by Article 103 of Civil Procedure of the P. R.C, “the people’s court is able to order the relevant organizations to carry on the obligation for assistance as well as impose a fine in case the organizations to be investigated are provided with following behaviors:⑴Relevant organizations turn down or hinder the court investigation…” so, the information concerning the earnings of party involved could be found out through the investigation order issued by the court. The regular organizations dare not offer fake evidence to the People’s Court.
The format of investigation order is as follows:
pplication for investigation order
To Shanghai Xuhui District People’s Court:
For the Case you registered No.（2005）XMYMCZD（36XX）concerning the divorce disputes between plaintiff: Liu and defendant: Zhao, the scope of communal estate comprises the focus of disputes herein. As specified by the law and regulations, the plaintiff is unable to collect the information concerning the earnings of Zhao by his own accord. Therefore, application for court investigation is hereby carried out.
Organization to be investigated: Shanghai XX Electric Information Co., Ltd.
Contents to be investigated: earnings of Zhao range from July,2004 toJuly,2005（see detailed payroll）.
Applicant:
July 17, 2005
(3). Application for court investigation
For the region where the lawyer investigation order is not implemented, the court investigation could be applied for the investigation of the other party’s earnings in the event such earnings information is crucial to the division of property and cost of maintenance.
The format of court investigation order is as follows:
Application for court investigation
To Shanghai Xuhui District People’s Court:
For the Case you registered No.（2005）XMYMCZD（36XX）concerning the divorce disputes between plaintiff: Liu and defendant: Zhao, the scope of communal estate comprises the focus of disputes herein. As specified by the law and regulations, the plaintiff is unable to collect the information concerning the earnings of Zhao Hong by his own accord. Therefore, application for court investigation is hereby carried out.
Organization to be investigated: Shanghai XX Electric Information Co., Ltd.
Contents to be investigated: earnings of Zhao range from July,2004 toJuly,2005（see detailed payroll）.
Applicant:
July 17, 2005
Part ⅩⅤ What should be done to protect the benefits gained from the furniture and valuable property?
(1)The reason for the protection of valuable furniture and property
Separation may occur due to the aggravation of conjugal relation. As one party cannot stand everything of the other party, he/she may move out of home. Therefore, the properties are not under control of the party who leaves home. If the other party hided the property, and also the party involved was unable to prove such hiding of communal estate, the actual conditions thereof would be difficult to be confirmed even though a lawsuit was filed.
For instance, the conjugal relation between Zhang and Li was keyed-up. So, Zhang had to leave home and rent another place to stay. For this couple, the divorce was sooner or later. Therefore, incited by relatives and friends, Li brought all valuable gold & silver ornaments as well as the costly furniture and home electric appliances to the place where her parents lived. Even though some neighbors proved the furniture and electric appliances withdrawn by Li, the detailed items thereof could be confirmed.
Therefore, the protection of furniture and valuable property shall be taken into accounted as the party involved conducts the separation.
(2) The method adopted for the protection of valuable furniture and property
Valuable metals such as gold & silver ornaments are easily to be hidden due to their small physical size and high value. So the gold & silver ornaments shall be collected prior to separation. Of course we do not propose the transfer or hiding thereof; however the list of valuable metals could be submitted to the judge afterwards as preparing the lawsuit. So they could be handled as the communal estate.
For the protection of furniture and home electric appliances, such methods for evidence collection as adopting video & audio materials and looking for witness could be introduced. For example, the party involved may invite two witnesses who have nothing to do with the case to record the property via digital camera/pickup camera. The pictures shot shall include following key elements:
First, the facial futures of the witnesses shall be distinguished clearly in the pictures including the articles and witnesses shot.
Second, close-up shall be adopted as shooting the brand and specification of articles.
Third, the specific positions where the shot articles are located.
After shooting the valuable articles or the decoration information at home, the witnesses shall put down the evidence, so as to prove the information concerning the electric appliances, furniture and decoration. For instance:
Evidence verified by the witness
My name is Guan, a friend of Cheng and Zhou. 9 a.m., July 20, 2005, at the invitation of Chen, I went to home where Chen and Zhou lived（Room 201, No. 144X Pudong Road S., Shanghai） for the checking of partial communal estate herein.
1. One Haier-brand refrigerator (double door);
2. One SONY41inch’ photo-electric color TV set;
3. Two Gree 3P vertical air conditioners;
4. Three Gree wall-hanging air conditioners;
5. Mahogany furniture（two big closets, two settees for three people and two chairs）；
6. One Galanz microwave oven；
7. One Haier dish washer；
……
It is verified that the said properties are placed in Room 201, No. 144X Pudong Road S. Shanghai.
Verified by Guan
July 20, 2005
Enclosed: the copy of witness’s ID card and the liaison of the witness.
Part ⅩⅥ What is the method to cope with the property hiding and transferring when conducting the divorce?
When true love turns to be hatred, when tender sentiments turn to be anger, when a solemn pledge of love and sincerity has gone forever, when selfishness in nature is breeding and spreading, property hiding becomes a “natural” option to both parties or one party involved in the divorce case. In divorce cases conducted by the court, nearly 90 % of them are concerned with property disputes. They are often widely divergent not only at methods of division and the scope of common property as well. One reason for this disagreement is the act of property hiding or transfer by one party or both parties. Common method of hiding or transfer on real estates could be divided into the following kinds:
(1) Hiding the information of possessing real estates privately.
In our cases as agents, the person involved often has a better salary; so many of them often possess more than one real estate. In face with divorce, some divorcers have already purchased other real estates privately. In dealing with the divorce, the purchasers don’t mention additional estates at all, which of course, will not be included into the common property.
Due to the longer purchasing procedures and cycles, the purchaser maybe discloses some traces thereof when the conjugal life is existed. Therefore, if one party behaves secretively or exceptionally and the other party doubts that he/she has purchased additional premises, the other party should start checking for his/her invoices or deposits records, whether a great sum of deposits have been withdrawn some time, or the capital flowing records to a real estate agency. If one party’s behaviors show no clues thereof, the other party needs to adopt ways of inference to check whether additional premises were purchased. For instance, supposing one party has purchased another house property, the other party should try to know about his purpose. If the premises may be purchased for his lover, the other party should investigate the third party’s dwelling. After knowing the house No., you can check for the property right of the premises at the house property transaction center. If the premises may be purchased for relatives, the other party should first make a plan on how to investigate, and then make sure who the user is now. Generally, in case the person involved purchases real estates privately, there is quite low possibility of being vacancy. Even though the said investigations fail to get the relevant information, the other party shall pay closely attention on his/her exchanges with the real estate agency, to make sure whether the house is leased out.
Generally speaking, it is particularly important to hire a professional lawyer or other relevant person as the agent, as it is quite difficult to conduct investigations based on his/her own capability. Surely, it takes additional expenses for hiring, but the housing price in the metropolis is at least tens of thousands Yuan, so the expenses and risks in hiring agents for investigation are comparatively low with the potential takings and benefits. (2) Placing a substitute by subterfuge: the purchaser transfers ownership to the other people privately.
In case the property right is under the name of both parties, it is impossible to hide additional real estates in Shanghai, as the house property transaction center can only conduct the transfer procedures by mutual consents of both parties. In case the property right is under the name of one party, there is possibility that he/she may transfer the ownership to the other person in terms of cash or capital flow without authorization.
It is not a quite smart way for hiding and transferring property, as the whole transaction procedures and the target are easy to pick up. The reason for adopting this method is that it is quite easy to find excuses in terms of cash, which is by no means a smart method but an effective one for transfer.
Generally, in the process of divorce, the fact of transfer of the property right without authorization will reveal one day. Therefore, it is essential to keep informed of the trading time and the buyer through the house property transaction center. The identification of the trading time is to answer back the possible excuses presented by the defendant that the payment for selling the house has been used up. The identification of the buyer is to make sure whether the buyer has a bad intension or has known or should have known that the property right of the premises belongs to common property. Although the property right doesn’t apply to “obtainment on a good will”, in case the buyer is the party’s parent, such transaction is invalid on the strength of the court judgment, for the purpose to ultimately safeguard rights and interests of the other party.
(3) Escaping secretly like a cicada sloughing off its skin: the person involved purchases real estates under other’s name.
In the conjugal relation, the party involved purchases the premises under other’s name, but he/she is the actual housing owner, and the transfer of property right may be conducted after divorce. This method can be called “superb” with a higher cost, as the contractual taxes for transaction must be paid. This method is applicable to the couple who have been on bad terms for quite a long time and one party earns a lot. To them, divorce is a must but a matter of time.
Focuses are listed as follows:
First, from the fact revealed by the owner: As the housing price is too huge, generally speaking, the party involved shall not purchase the premises under the name of an ordinary friend but his/her parents or siblings. Therefore, doubts may bring about if not-well-off parents or siblings possess a real estate of high value. Different methods and tactics can be made out for investigating different people.
Second, from the trading time to get clues. Based on the purchasing time, you can recollect whether the party involved spent substantial expenses or conducted quite abnormally during this period of time; if conditions permit, you should check for cash flow of the bank deposits of the party. If you have grasped some evidence, check for the bank where the housing payment remitted for the real estate company, Perhaps you can get some useful sources of information.
(4) Waiting at one’s ease for an exhausted opponent: The real estate purchased by both parties before marriage is registered under the name of one party.
In face with a good opportunity for real estates, both parties purchased the premises together without having received the marriage certificate. However, in the procedures of purchasing, the more “shrewd” party may register the house under his/her name with excuses that “It is inconvenient to make loans.” or “Both parties cannot possess estates by the entirety without marriage certificate.” etc. In case both parties decide to get divorced, the party involved maybe denies the fact that the premises are purchased jointly. No matter how misery the other party is, the party involved can possess the entire premises or reach this goal through the power of court.
First, pay attention to records of the bank accounts or the credit cards’ expenses, which can be regarded as useful evidence for expenditure. Second, you’d better bear in mind that your own name should be involved in Certification of Title or both parties reach agreements on the issues of payment before marriage.
Part ⅩⅦ What are the common methods and tactics for bank deposit hiding and transferring?
(1) By deception, the party involved hides bank deposits or saving accounts.
The person involved withdraws money from bank deposits or wage card and saves money into his/her accounts in other banks. In the process of divorce, the party involved claims that his/her deposits have been used up on family life expenses by handing over wage cards to the court with a little money left.
Subject to legal provisions, only six departments have the right to investigate bank deposits, the party involved and the lawyer excluded. Therefore, it is relatively tough for the party involved to check for hidden bank deposits. Generally, in family life, the couple shall keep an eye on proofs of depository/withdrawal information, especially the opening bank and saving account number of the other party. Based on judges’ judicial practice, in the event that:
① The party involved knows about the opening bank and saving account number, it is relatively easy for his/her to apply for the court investigation.
② The party only knows about the opening bank rather than the account number, it is feasible in theory, but it cannot be a promise that the court shall surely accept the application for investigation. Other solutions should be considered in advance in case the court rejects the application.
③ If neither the opening bank nor saving account number are unknown, the court shall reject the application.
(2) Trying to do something by underhand means: the party involved withdraws all the bank deposits and disappears in the world.
Common methods: If one party knows about bank deposits and relevant accounts information, the party involved may secretly transfer deposits in terms of cash into other banks or save under the name of others, while verbally claims that all the savings have been used up on family life expenses. (The bank shall keep track of the cash flow by means of transfer.)
Generally, the court shall not accept the application for court investigation about the third party’s saving accounts in divorce case. In case one party claims that all the deposits have been used up on family life expenses, the following matters shall be taken into account:
First, time of depository/withdrawal, which determine the party’s expenditure and his/her motive on it.
Second, amounts of depository/withdrawal. The huge sum cannot be used up in a short time.
Third, the normal life expenses and relevant proofs of the party involved can be used as counterplea.
Fourth, other relevant facts and proofs. For instance, the recent family life expenses and the cash flow of the party involved.
Generally speaking, the court’s judgment on property division is subject to the actual amount other than that in theory. The court generally shall not support the amount inferred by one party through speculation without relevant proofs. For instance, one party argues that the other party earns more than ten thousand Yuan per month and his expenses constant are 3000 plus Yuan. In two years, if the party can save the rest 7000 Yuan every month, he/she at least possesses 100,000 Yuan. Another example, the party’s salary is only 2000 Yuan per month, but he/she can have a year-end benefit bonus, which maybe 100,000 Yuan or at least more than ten thousand. These kinds of speculations shall not be supported by the court. Similarly, the court shall not readily give credit to explanation that “One party’s bank deposits have been used up.” Or “A huge sum of money is missing, spent or lost by gambling in a short time.” In other words, the court may stand for reasonable explanation on capital outflow.
Part ⅩⅧ What are the common methods and tactics for equity securities hiding and transferring?
Hiding capital stock is also a common issue. For instance:
(1) Hiding information on stock speculations.
The party is not informed of the code of shareholders, fund number or the securities company of the other party.
(2) Selling stocks in the market in large quantities for cash and transferring or hiding the withdrawal.
The account of stock speculations must be opened by the bank, so the transfer or hiding of stock capital resembles that of bank deposits. I will not elaborate more hereof, but one thing to remind you, it is relatively easy to investigate stocks information. In Shanghai, based on the order of court investigation, you can direct go to the securities managerial & operational institutions for inquiry. As long as printing stock scripts, it is quite easy to learn about the party’s capital outflow. Hence, there is comparatively slim chance to hide capital stock.
Part ⅩⅨ What is the method for one party to prevent the adverse party from transferring equities in the limited company?
In dealing with divorce cases every year, a great number of divorcers run one or more companies or enterprises. During the negotiation and trial of divorce cases, division of company or enterprise equities turns to be the focus. Register of shareholders can be inquired at the registry for industrial & commercial administration, unless the shareholder invests as a secret partner and under others’ name. Troubles on division of corporate property lie in that the corporate financial affairs are not conducted on standard or false account books. Even though the court conducts the assets audit, it usually turns out to be with high value but low evaluation. In this sense, if it is possible for the opposite party to transfer equities in the limited company, we shall apply for the court to freeze the relevant equities in order to protect the party’s benefits to the largest extent.
Part ⅩⅩ What should one party do to deal with the other party’s transfer of the real estate without the permission of the other party during the divorce process?
To the majority of ordinary people, the biggest difficulty in divorce cases is division of house property. Therefore, the division concerning house property turns out to be the most controversial issue, and one of important legal issues is how to execute penalty for transferring premises without authorization in the process of divorce.
Relevant case
Mr. Zhang and Ms. Liu got to know each other through introduction and registered for marriage in May 2000 at the Civil Affairs Bureau in X District, Shanghai. In 2002, the couple, under the name of Liu, purchased a house that is worth 300,000 Yuan at XYZ Rd, X District in Shanghai. However, in June 2003, owing to conflicts in daily life, Zhang took a legal action for divorce on the ground of emotional breakdown. As Liu strongly opposed the divorce, the court of first instance didn’t approve the divorce request, because the couple had a better affection base and their marriage may probably be saved. In Janauary.12.2004, Zhang lodged a divorce lawsuit to the court again. As Liu transferred the common estate, without the authorization of Zhang at the price of 400,000 Yuan to the third party who had no relation of gains and losses with them (The plaintiff claimed that the market price of the house was 600,000 plus Yuan at that time.).
As for 400,000 Yuan from selling the premises, Liu claimed that 310,000 Yuan was used to return common liabilities, the rest 90,000 Yuan subsidized family expenses, and only 20,000 Yuan was left for division as common property.
Opinions from the plaintiff:
1. The defendant Liu didn’t sign and reply after receiving the court summons for the divorce. She tried to put off the case in order to save time of selling the premises, whose acts had constituted the malicious transfer of the premises without authorization in the process of divorce.
2. The defendant Liu transferred the premises at the price obviously lower than the market price. Actually, the premises were sold at a low price based on the second-hand house purchasing contract, the actual price may be different, in order to exempt taxes and possess more common property.
With a view to Li’s infringement act, the plaintiff applied for a market evaluation on the premises and she should be prosecuted for her infringement act.
Opinions from the defendant:
1. The defendant argued that she was unable to contact the plaintiff when she intended to transfer the premises and she didn’t know that the plaintiff had taken a legal action at that time. Her act didn’t constitute the transfer of premises without authorization.
2. The defendant was not a professional real estate agent, so she couldn’t have an acute evaluation on the house price. She didn’t realize that the price was too low.
3. Although the premises were sold at the price of 400,000 Yuan, most of them had been used up for returning common liabilities. So, only the rest 20,000 Yuan can be regarded as common property for division.
Opinions from the court of first instance:
1. Both parties are faced with marriage breakdown.
2. During the lawsuit, the defendant’s act of selling the premises was subject to the relevant regulations on purchasing and selling premises, which didn’t constitute malicious transfer. The actual funds for selling the premises were 400,000 Yuan and the court shall not support the plaintiff’s speculation that the premises were worth 600,000 Yuan, as well as the defendant’s explanation that the funds had been used for returning common liabilities. So, the court made the judgment that 400,000 Yuan for selling the premises shall be divided at the discretion based on the current market price, that is, the male party should get 220,000 Yuan and the female party should get 180,000 Yuan.
Analyses on legal issues:
1. Does Liu’s act constitute “the transfer of premises without authorization in the process of divorce”?
2. Does Liu have to bear legal liabilities and how to take them?
The current laws haven’t drawn a clear line about “the process of divorce”.
In our opinions, the process of divorce in a broad sense refers to the time period from both parties start negotiations on divorce issues to the completion of divorce procedures. While the process of divorce in a narrow sense, refers to the time period from one party takes a legal action to the court makes the final judgment. We hold the opinions that Article 47 in Marriage Law of the P.R.C refers to the concept in a narrow sense.
In this case, though the plaintiff brought a divorce case to court over 10 days before the defendant sold the premises, there was no direct evidence that the defendant sold the premises after receiving the court summons. At present, the court summons is usually delivered to the defendant by mail and to some extents it depends on the defendant’s own will to send back the receipt. In case the party involved turns his or her back to the court summons or claims that he/she doesn’t receive the court summons, the court often can do nothing. The service of court summons doesn’t belong to our discussion hereof. Although theoretically, we can infer that Liu transfers the premises without authorization after receiving the court summons, there is not enough evidence concerning this.
We consider Liu’s acts to be “the transfer of the premises without authorization.”
Pursuant to Article 17 in Marriage Law of the P.R.C, both parties have the equal right to deal with common property. We don’t suggest the couple should consent some trifles together, but as for the transfer of premises, such important house property, in case one party deals with it without authorization, it should constitute an infringement action on the right to deal with common property.
Does Liu’s act of transferring the premises do harm to the plaintiff, and does it constitute “ the transfer at a lower price”? The key issue is that the housing price at which Liu transferred the premises is in line with the market price. Though the plaintiff submitted the prices of premises for sale in the same district with the same direction and applied for the evaluation in the lawsuit, the court didn’t approve the plaintiff’s application on the ground that the house was resold. In my opinion, the defendant’s act of transferring the premises without authorization leads to failure of the evaluation of the original common house property. In case the failure is caused by objective reasons, the defendant Liu should bear the main responsibility. Hence, from my point of view, the court should take account of the plaintiff’s loss with reference to the market prices on premises in the same district. The court should evaluate the premises whenever possible, so as to make it accurate lest that the plaintiff has to suffer from economic loss owing to the defendant’s act of transferring the premises without authorization.
Does Liu have to bear responsibilities on compensation for damage? No matter whether Liu’s acts constitute a malicious transfer subjectively, but she should have known that transfer of common house property must be conducted under negotiation with the other party. So, Liu has faults subjectively and her acts constitute “Transfer of the premises without authorization”. Hence, no matter whether she thought the house price was reasonable, as long as the price of the transfer was approved lower than the market price, Liu should bear the legal compensation for damage.
Through the said case, we can conclude that because of the special conjugal relation, there is still space for those who want to make use of the “default” on penalty and precautions in face with transfer of premises without authorization in practice. Provided that the economic capacity permits, we suggest applying for property insurance, which means the common premises should be frozen up or seized by legal authority. But in case the court for the first instance doesn’t adjudicate divorce, several thousand Yuan may be spent in vain, so application for property insurance may be at the expense of certain economic loss.
Of course, in accordance with the regulations on management of real estate registration in Shanghai, in case one party may offer the premises for sale and the Certification of Tile is under his/her name, the other party can file an opposition to transfer with the marriage certificate at the house property transaction center, and such register can take effect in the center’s information database for three months. Although in the event that the buyer insists on purchasing the premises, the transaction cannot be prevented, your registration for opposition can play an important role as direct evidence for such lawsuits as invalid house property transaction or for prosecuting the party’s responsibility on transfer of the premises without authorization. We suggest the party involved making such registration by only 50 Yuan.
Part ⅩⅩⅠ What the division of the company and enterprise equities?
Pursuant to suggestions from the relevant judiciary, during divorce, as for company and enterprise equities, it is essential that the judiciary should properly ascertain the assets, clearly define the nature and draw lines about assets. In other words, in accordance with Marriage Law of the P.R.C, relationship of the following items should be correctly distinguished, i.e.: common property and the right to possess respectively; the property before marriage and after marriage; the property possessed by on | | | |
