Law school | how to deal with housing debt?Two Conjectures on Marriage with the Civil Code

2022-07-14 0 By

The hit drama “two kinds of guess of marriage” has broadcast the final episode, the plot tells about shen Mingbao, Xue Kexin two heroines because of blind date, come across their flash marriage, in the friction of a series of marriage and the destruction of life after their growth, find the story of self.The show has been widely discussed because of its close to real life, humorous interpretation of the way to focus on the various aspects of young people’s marriage and family life.A reporter from Beijing Youth Daily noted that there are also many legal issues involved in the drama, which deserve consideration.Including Shen Mingbao husband and wife replacement of the new house encountered homeowners to rent debt trap, Shen Mingbao abortion Yang Contention for company compensation, lactation can Sue for divorce and other issues.On April 8, Beijing Youth Daily invited Dong Mei, assistant judge of the Haidian Court, to interpret the legal events in the drama using the civil Code.Can “rent-for-debt agreement” counter the actual buyer?Female Shen Mingbao and male Yang Zheng is a small couple, Shen Mingbao pregnant with twins, one family to discuss replacement of a big house to live, just at this time, do the housing agency work Yang Zheng sister found a low price to sell the big house, the family after seeing the house are satisfied.Immediately, Shen Mingbao’s mother sold her house, Shen Mingbao sold and Yang Zheng married when the purchase of the house together enough down payment, the big house to buy down, signed a house sale agreement, for the relevant transfer procedures.When the whole family happily moved into a big house, they found that there was another middle-aged couple living in the house.On closer inquiry, it turned out that the original owner had leased the house to the middle-aged couple in the form of free rent for eight years due to a dispute over money owed. The “rent-for-debt” agreement between the two parties was signed a month before Yang and his wife signed the house sale agreement.So, who is in the right between the young couple and the middle-aged couple, and whether the Couple can successfully live in a big house?The answer is yes.According to article 725 of the Civil Code of the People’s Republic of China, if the ownership of the leased property changes during the lessee’s term of possession under the lease contract, the validity of the lease contract will not be affected.This regulation is what we usually mention namely “business does not break lease” rule, that is to say when buy a building before, this building already tenant bear rent, this lease relation still ought to continue, do not change with building droit person and change.However, in the drama, the agreement of “paying debts with rent” is nominally a lease contract, but in fact it is a way for the debtor to repay debts, and the legal provisions of “leasing without breaking sale” are not applicable.Therefore, the way of realizing the creditor’s right of the middle-aged couple against the owner of the house cannot oppose the ownership of the house enjoyed by Shen Mingbao’s family. The house should be discharged and the debtor (the owner) can be required to continue to perform the debt in other ways.Shen Mingbao aborts, Yang Zheng asks for compensation to wife company, can you get support?Shen Mingbao first accidental pregnancy, not ready to be a mother, still in the day and night struggle with their own career, but in the unit abortion.Unit leader then let Shen Mingbao recuperate at home.As the husband of Yang Zhengchu father’s sense of joy has not passed, that this matter can not give up, insist that Shen Mingbao’s abortion is the company to let pregnant women bear heavy work, overtime caused, then sent to the company to the lawyer’s letter to shen Mingbao compensation.Yang Zheng rushed into the leadership office and cursed…Yang Zheng: “does your company still have humanity?Do you still treat your employees like people?Brainwash employees not to get pregnant and encourage overtime, believe it or not I will Sue you!”Leader: “that you are wrong me, I do not know she is pregnant.”Yang Zheng: “is because you don’t let pregnant so she dare not say!”Leader: “We are not disallowing pregnancy, just not recommending it for the time being…”Shen Mingbao learned this matter, quickly ran to the office to explain to the leadership……Taking Yang zhengfa’s lawyer’s letter, the leader said to Shen Mingbao, “I can fight the lawsuit, BUT IF you win the lawsuit, I also warn you that I will use all my connections to let the human resources in the industry know that you are such a person, I don’t see how you can work…It’s all on your desk. Clear out!”Shen Mingbao had no choice but to leave the volume of bedding, and thirty years of age, lost his son and unemployment.So, does shen Mingbao’s abortion company have responsibility?Can the company dismiss Shen Mingbao?Whether the company assumes responsibility in this case should be analyzed on a case-by-case basis.On April 18, 2012, The State Council promulgated the special Provisions on Labor Protection for Female Workers. Article 6 stipulates that if female workers cannot adapt to their original work during pregnancy, the employer shall reduce the amount of work or arrange other suitable work according to the certificate of the medical institution.Pregnant female worker undertakes antenatal examination inside working time, time that need plans into working time.The regulation states that companies should take proper care of pregnant female employees and try to arrange work suitable for their physical conditions.Shen mingbao did not tell the unit leader when she was pregnant because she was concerned about job promotion. Later, she had a miscarriage due to mental tension, work pressure and poor sleep.However, as the unit is not aware of this, we believe that the unit should not assume full liability for compensation.However, it is inappropriate for the leaders of the unit to advise female employees not to get pregnant, and it is also against the law for the employers to require female employees not to get pregnant within a certain period of time.In addition, according to the provisions of Article 42 of the Labor Contract Law of the People’s Republic of China, the employer shall not dismiss the female employees who are in pregnancy, childbirth or lactation period.This regulation has made explicit provisions on the dismissal of female employees in three special periods, and there is no special stipulation on the dismissal of postpartum employees.Considering that the company shall give certain abortion leave to the employee after the abortion, the employee shall not be dismissed during the leave.Thereafter, the employing unit shall, in accordance with the provisions of Article 40 of the Labor Contract Law of the People’s Republic of China, notify the laborer in writing 30 days in advance or pay an additional month’s salary to the laborer before terminating the contract.Can you Sue for divorce while breastfeeding?How to divide the property bought by parents?After experiencing a series of domestic contradictions, friction, husband spirit derailment, the Shen Mingbao that still is lactation put forward divorce to Yang Zheng.Shen Mingbao found a lawyer and Yang Zheng to negotiate divorce matters, Yang Zheng refused, said he did not agree to divorce.So at this time Shen Mingbao can divorce proceedings?According to Article 1082 of the Civil Code of the People’s Republic of China, a husband may not apply for a divorce when his wife is pregnant, within one year after the birth or within six months after the termination of pregnancy.Except, however, where the wife applies for divorce or the people’s court deems it necessary to accept the divorce petition made by the husband.In order to protect women’s rights during breast-feeding, the law stipulates that a man cannot file for divorce during pregnancy, breast-feeding or six months after a miscarriage.Therefore, As a breast-feeding mother, Shen Mingbao has the right to file a divorce lawsuit against Yang Zheng.Mentioned above, Yang Zheng and Shen Mingbao replaced the big house, the source of funds is divided into two parts, one is Shen Mingbao’s mother sold his house, one is Shen Mingbao sold and Yang Zheng married when the house sold together.So in the divorce division of property, the parents of the property should be how to deal with it?In practice, the property attributes of the house purchased by parents for their children are generally identified as follows: no matter before or after marriage, one parent pays the capital in full or parents pay the loan in full after the down payment, the house is registered in the name of the capital party’s children, which belongs to the children’s personal property;If registered in the name of the other party’s children, it is necessary to explore the original intention of the parent of the investor to register in the name of the other party. If it can be identified as gift, it is regarded as the other party’s personal property.If it is not a gift, it is considered community property.For parents pay the down payment, payment together by both sides of husband and wife, need to distinguish between before marriage or after marriage, marriage party parents pay the down payment, married couples pay together, the two sides will jointly repayment value-added part of segmentation, parents paid part does not, of course, as a gift to the couple, need combined with the evidence to decide whether to the gift property, such as a gift,The parents’ contribution shall be returned.After marriage, one party’s parents pay the down payment, both husband and wife jointly repay the loan, generally think that the house belongs to the common property of husband and wife, parents contribute capital except otherwise agreed as the gift of both husband and wife.Therefore, if Shen Mingbao and Yang Zheng cannot reach an agreement on the division of the property, the house contribution consists of shen Mingbao’s mother’s contribution after marriage, Shen Mingbao and Yang Zheng’s original house contribution, as well as the joint loan repayment part, unless otherwise agreed, the house shall be divided as the joint property of the couple.Article/Beijing Youth Daily reporter Zhu Jianyong editor/Dong Zhenjie statement: the copyright of this article belongs to the original author, if there is a source error or infringement of your legitimate rights and interests, you can contact us through email, we will promptly deal with.Email address: jpbl@jp.jiupainews.com