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Mo Junfei v. Li Kaoxing (divorce dispute)
莫君飞诉李考兴离婚纠纷案
【法宝引证码】
  • Type of Dispute: Civil-->Marriage/Family & Inheritance
  • Legal document: Judgment
  • Judgment date: 12-02-2010
  • Procedural status: Trial at First Instance
  • Source: SPC Gazette,Issue 12,2011

Mo Junfei v. Li Kaoxing (divorce dispute)
(divorce dispute)
莫君飞诉李考兴离婚纠纷案

Mo Junfei v. Li Kaoxing
(divorce dispute)

 

莫君飞诉李考兴离婚纠纷案

[Summary] [裁判摘要]
A divorce agreement reached between married parties is a formal agreement, i.e. such an agreement only comes into force after both parties agree on a divorce and sign the agreement. As the disposition of property by both parties is conditioned upon divorce, even if the formalities for modification of property rights have been performed, the modification fails to take effect as the prerequisite, divorce, was not fulfilled, and the property in which ownership has been modified remains to be community property during the existence of their marital relationship. 婚姻当事人之间为离婚达成的协议是一种要式协议,即双方当事人达成离婚合意,并在协议上签名才能使离婚协议生效。双方当事人对财产的处理是以达成离婚为前提,虽然已经履行了财产权利的变更手续,但因离婚的前提条件不成立而没有生效,已经变更权利人的财产仍属于夫妻婚姻存续期间的共同财产。
BASIC FACTS 
Plaintiff: Mo Junfei, female, Han ethnicity, 31 years old, residing in Wenlang Residents' Committee, Wenlang Town, Huaiji County, Guangdong Province. 原告:莫君飞。
Defendant: Li Kaoxing, male, Han ethnicity, 34 years old, residing in Chengnanhenan Residents' Committee, Huaicheng Town, Huaiji County, Guangdong Province. 被告:李考兴。
Plaintiff Mo Junfei instituted an action in the Huaiji County People's Court of Guangdong Province for divorce disputes with defendant Li Kaoxing. 原告莫君飞因与被告李考兴发生离婚纠纷,向广东省怀集县人民法院提起诉讼。
Plaintiff Mo Junfei claimed that: She and Li Kaoxing met in the first half of 2002 through arrangement by another person and registered their marriage in March 2003. They gave birth to a son named Li Xuyu on October 21, 2003. Due to an inconsiderate marriage without prior understanding of each other, both parties showed completely conflicting personalities after marriage, and the defendant behaved selfishly and suspiciously, treating his wife as personal property. It was unavoidable for the plaintiff, a teacher, to have a conversation with her classmates, colleagues, or students' parents when coming across them. The defendant, however, interfered with and restricted the normal social communication of the plaintiff and threw harsh words to and even insulted the integrity of the plaintiff. The plaintiff and the defendant rarely had heart-to-heart talks. When the plaintiff was sick, the defendant was indifferent. It was impossible for both parties to establish a normal spousal relationship. During the summer vacation of 2007, the plaintiff asked the defendant whether she could work outside as a tutor to subsidize household expenditures and mitigate marital conflicts, which was rejected by the defendant. The defendant also asked the plaintiff's mother to stop the plaintiff from going out, stating that “divorce must be made before she works outside as a tutor” and so on. As a result of increasingly deteriorating relationship between the couple, both parties agreed to divorce in May 2010, but the divorce negotiation failed due to property and other issues. In July 2010, the defendant, in order to acquire community property at the time of divorce, deceived the plaintiff into transferring all the land use right within the scope of No. 0036 Land Use Certificate (2006) to the defendant. In early August 2010, the defendant kicked the plaintiff out of their house and changed all door locks of the house. The plaintiff had to rent a house to live together with her son. As the spousal affection between the plaintiff and the defendant was totally and irreparably broken, the plaintiff was determined to require a divorce. The property of the plaintiff and the defendant during the existence of their marital relationship, including the homestead located in Yuxiu Residents' Committee of Huaicheng Town [the land use right within the scope of No. 0036 Land Use Certificate (2006)] with a value of 150,000 yuan, as well as electrical appliances, furniture and so on, should be divided pursuant to law. To this end, the plaintiff instituted this action in the court, requesting the court to order that: (1) the marriage between the plaintiff and the defendant be dissolved; (2) their son, Li Xuyu, be in the custody of the plaintiff, with child support fees jointly assumed by the plaintiff and the defendant; (3) their community property (worth approximately 150,000 yuan) be equally divided; and (4) the case acceptance fee be paid by the defendant. 原告莫君飞诉称:原告与被告李考兴于2002年上半年经人介绍相识,2003年3月双方登记结婚,同年10月21日生育一子李序宇。由于婚前双方缺乏了解,草率结合,婚后双方性格完全不合,被告性格自私、多疑,把妻子当作个人财产。原告作为一名教师,见到同学、同事或学生家长时,难免要互谈几句,但被告对原告的正常交往均干涉限制,对原告恶言相向,甚至侮辱原告人格。平时,原、被告之间很少谈心,原告得病,被告也漠不关心,双方根本无法建立应有的夫妻感情。2007年暑假,原告为了家庭生活及缓解夫妻矛盾,向被告提出外出做家教,遭到被告的反对,并经原告母亲出面制止原告外出,声称“如果要外出家教,必须先办离婚手续”等等。由于原、被告夫妻感情不断恶化,双方曾于2010年5月协议离婚,但因财产等问题协商未果。2010年7月,被告为在离婚时霸占夫妻共有财产,骗取原告将(2006)第0036号土地使用证范围内的土地使用权全部变更给被告。 2010年8月初,被告将原告赶出家门,并将家里的门锁全部换掉,原告被迫在外租房与儿子共同生活。原、被告的夫妻感情彻底破裂,无和好可能,原告坚决要求离婚。原、被告在夫妻关系存续期间的财产有坐落在怀城镇育秀居委会的宅基地[(2006)第0036号土地使用证范围内的土地使用权)价值15万元及电器、家具等,应依法分割处理。为此,特向法院提起诉讼,请求:1.判决原告与被告离婚;2.儿子李序宇由原告抚养,抚养费用由原、被告共同承担;3.依法平分夫妻共同财产(价值约15万元); 4.本案受理费由被告负担。
Defendant Li Kaoxing defended that: Mo Junfei and he met each other through arrangement by another person and maintained a romantic relationship. They had a good understanding of each other's personality during a year of relationship and had a solid premarital foundation. After marriage, they gave birth to a son named Li Xuyu, and the defendant helped the plaintiff change jobs twice through his personal connections. In December 2009, the plaintiff was hospitalized for 15 days, and the defendant accompanied and looked after her until she had recovered, reflecting the deep and solid affection between them. The relationship between the plaintiff and the defendant could still be mended. The defendant strongly disagreed with divorce and requested the court to persuade the plaintiff to give up the idea of divorce so as to save the marital relationship between them. 被告李考兴辩称:原告莫君飞与被告经人介绍相识后,经一年的自由恋爱,双方对对方的性格已完全了解,应有牢固的婚前基础。婚后,双方生育有儿子李序宇,被告通过人事关系两次为原告调动工作。在 2009年12月原告因病住院15天,被告每天陪护至原告康复,可见夫妻感情深厚、牢固。原、被告还有和好可能,被告坚决不同意离婚,请求法官多做原告的思想工作,使原告放弃离婚念头,挽救原、被告的婚姻关系。
The Huaiji County People's Court of Guangdong Province, the court of first instance, found that: 广东省怀集县人民法院一审查明:
Mo Junfei and Li Kaoxing met each other in the first half of 2002 through arrangement by another person and registered their marriage in March 2003. They gave birth to a son named Li Xuyu on October 21, 2003. After marriage, they maintained a relatively good spousal affection. During the summer vacation of 2007, Li Kaoxing prevented Mo Junfei from working outside as a tutor and they had some verbal disputes. Afterwards, their marital relationship was unstable. In May 2010, Mo Junfei drafted a divorce agreement and handed it to Li Kaoxing, and Li Kaoxing promised that he would undergo the divorce formalities if their son was to be in his custody and the homestead (with the land use right registered to the wife and worth 200,000 yuan) was to be owned by him. In July 2010, they went to the land administration department and modified the owner of all the land use rights within the scope of No. 0036 Land Use Certificate (2006) to Li Kaoxing. However, Li Kaoxing broke his promise and disagreed with divorce. In early August 2010, Mo Junfei moved out of their house, lived in a rented house, and instituted an action in the court, requesting a divorce and division of common property. 原告莫君飞与被告李考兴于2002年上半年经人介绍相识,2003年3月双方登记结婚,同年10月21日生育一子李序宇。婚后,原、被告的夫妻感情较好。2007年暑假,李考兴阻止莫君飞外出做家教,双方发生言语争执。之后,夫妻关系时好时坏。 2010年5月,莫君飞草拟离婚协议一份交给李考兴。李考兴答应如果儿子由其抚养和夫妻存续期间购买的宅基地(使用权登记为女方,价值20万元)归男方所有的,愿意去办离婚手续。同年7月,原、被告双方到土地管理部门将原登记在莫君飞名下的 (2006)第0036号《土地使用证》范围内的土地使用权全部变更给李考兴名下。但是,李考兴反悔,不同意离婚。同年8月初,莫君飞搬离家中在外租屋居住,并向法院提起诉讼,请求判决准许离婚,并分割共同财产。
The Huaiji County People's Court of Guangdong Province conducted mediation, but failed because Mo Junfei insisted on divorce and Li Kaoxing disagreed on divorce. 经广东省怀集县人民法院主持调解,因原告莫君飞要求离婚,被告李考兴则不同意离婚,调解未果。
DISPUTED ISSUES来自北大法宝 
The disputes before the court of first instance focused on: whether the divorce agreement drafted by Mo Junfei and Li JKaoyan had come into force and whether the modified property remained to be the community property of both parties. 本案一审的争议焦点是:原告莫君飞与被告李考兴草拟的离婚协议是否生效,变更后的财产是否仍是夫妻共同财产。
JUDGMENT'S REASONING 
The Huaiji County People's Court of Guangdong Province, the court of first instance, held that: 广东省怀集县人民法院一审认为:
Mo Junfei and Li Kaoxing fell in love after meeting each other through arrangement by another person and voluntarily registered their marriage after having a good understanding of each other during a period of time. There was a good foundation of affection between them. After marriage, they were able to support each other in both life and work, establishing a certain degree of spousal affection. Their son was still very young and, in view of the facts found in the action, needed their care and love very much. The divorce of both parties would bring harm to their son. Therefore, Mo Junfei's claim for divorce should not be supported. 原告莫君飞与被告李考兴经人介绍相识并恋爱,双方经一段时间相互了解并自愿登记结婚,双方具有较好的感情基础。婚后,原、被告在生活和工作上能相互扶持,双方建立有一定的夫妻感情;原、被告生育的儿子尚年幼,从双方诉讼中反映的情况,现儿子极需父母的爱护,双方离婚,对儿子会造成伤害,因此,莫君飞主张离婚的诉讼请求,不予支持。
Regarding whether both parties had reached a divorce settlement: A divorce agreement was an agreement to rescind the personal relationship between a husband and wife. It was a formal agreement that may come into effect only after both parties had signed it. In other words, the prerequisite for the formation of the agreement was that both parties signed the agreement. Even if there were witnesses present to prove both parties' willingness to divorce, the divorce agreement failed to come into legal effect as long as either party did not sign the divorce agreement for confirmation. Mo Junfei drafted a divorce agreement and gave it to Li Kaoxing in May 2010. Li Kaoxing orally agreed to divorce and both parties performed the part of their agreement regarding division of community property, based on which it may be determined that both parties had reached a divorce accord. However, a judgment of divorce could not be made based on a divorce agreement signed by only one party, as Li Kaoxing did not sign the agreement, leading to the absence of an essential element for the formation of the contract, and would not agree on divorce afterwards. 对于双方当事人是否达成离婚协议问题。离婚协议是解除夫妻双方人身关系的协议,该协议是一种要式协议,必须经双方当事人签名确认才能生效,即双方在协议上签名画押是其成立的前提条件。否则,即使有证人在场见证,证明双方达成离婚合意,但由于一方没有在离婚协议上签名确认,在法律上该离婚协议是没有成立的。原告莫君飞于2010年5月草拟离婚协议一份交给被告李考兴,虽然李考兴口头答应离婚,且双方履行了共同财产分割的部分,可以认定双方对离婚达成了合意,但是由于李考兴并没有在协议上签名导致离婚协议欠缺合同成立的要件,且事后李考兴反悔不愿离婚,因此不能根据仅有一方签名的离婚协议判决双方离婚。
Regarding the disposition of property by both parties before divorce: The agreement involved in this case was a divorce agreement made during a marriage, i.e. an agreement reached by a man and a woman during the existence of their marital relationship regarding division of property and support of children for the purpose of dissolution of marriage. A divorce agreement was conditioned upon both parities' willingness to divorce, and one or both parties, for the purpose of divorce, may make conditional concessions in child support, division of property, and other aspects. If both parties did not register their divorce at the marriage registration authority, the agreement would not come into force and had no legal binding force on both parties, and the people's court could not directly use its provisions regarding child support and property division as a basis for the handling of a divorce case. Mo Junfei and Li Kaoxing agreed on division of community property after negotiation during the process of divorce by agreement based on their true will and performed the modification registration. However, as Li Kaoxing did not sign the divorce agreement, leading to the absence of an essential element for the formation of the divorce agreement, the divorce agreement was void, and the performance of this agreement may also be held void. The land use right within the scope of No. 0036 Land Use Certificate (2006) had been modified to be under the name of Li Kaoxing, but the land use right remained to be the community property of Mo Jinfei and Li Kaoxing during the existence of their marriage, same as registered under the name of Mo Junfei. 对于双方当事人在离婚前作出的财产处理问题。本案离婚协议是属于婚内离婚协议,所谓婚内离婚协议,是指男女双方在婚姻关系存续期间,以解除婚姻关系为基本目的,并就财产分割及子女抚养问题达成的协议。婚内离婚协议是以双方协议离婚为前提,一方或者双方为了达到离婚的目的,可能在子女抚养、财产分割等方面作出有条件的让步。在双方未能在婚姻登记机关登记离婚的情况下,该协议没有生效,对双方当事人均不产生法律约束力,其中关于子女抚养、财产分割的约定,不能当然作为人民法院处理离婚案件的直接依据。原告莫君飞与被告李考兴在协议离婚过程中经双方协商对财产分割进行处理,是双方真实意思表示,并且已经进行了变更登记,但由于李考兴并未在离婚协议上签名,达不到离婚协议的成立要件,因此,该婚内离婚协议无效,即按该协议所进行的履行行为也可视为无效。虽然(2006)第0036号《土地使用证》范围内的土地使用权变更在李考兴名下,但该土地使用权还是莫君飞和李考兴婚姻存续期间的共同财产,与原来登记在莫君飞名下的性质是一样的。
JUDGMENT 
In summary, as long as both parties cherish their established spousal affection, cautiously treat marriage and family issues, and respect and care for each other, they were likely to reconcile. Therefore, on December 2, 2010, in accordance with Articles 128 of the Civil Procedure Law of the People's Republic of China and Article 32.2 of the Marriage Law of the People's Republic of China, the Huaiji County People's Court of Guangdong Province rendered the following judgment: 综上,只要双方珍惜已建立的夫妻感情,慎重对待婚姻家庭问题,做到互相尊重、互相关心,夫妻是有和好可能的。据此,广东省怀集县人民法院依照《中华人民共和国民事诉讼法》第一百二十八条,《中华人民共和国婚姻法爱法律,有未来》第三十二条

老婆觉得我剪头发浪费钱

第二款的规定,于2010年12月2日判决:
“To dismiss the divorce claims of plaintiff Mo Junfei. 驳回原告莫君飞的离婚诉讼请求。
The case acceptance fee of 150 yuan shall be paid by plaintiff Mo Junfei.” 案件受理费人民币150元,由原告莫君飞负担。
COMMENTARY 
Neither Mo Junfei nor Li Kaoxing appealed against the judgment of the court of first instance, and the judgment came into force.

 一审判决后,原告莫君飞与被告李考兴均没有提起上诉,判决已经生效。
 

     
     
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