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离婚案件中常见“造假”证据的应对策略

发布时间:2019-01-18 16:02
“假”证据一般体现在方面,对于及感情过错方面,当事人一般不会造假,无非是说说“假”话而已。因为财产分割涉及当事人的经济利益,因此,在财产分割中,“假”的证据较为常见。
 
"False" evidence is generally reflected in aspects, and emotional faults, the parties will not generally fake, just say "false" words. Because the division of property involves the economic interests of the parties, therefore, in the division of property, "false" evidence is more common.
 
 
 
1、涉嫌假造债务的认定及处理
 
1. Recognition and Treatment of Suspected Fake Debt
 
 
 
涉嫌“债务作假”很多体现在房产上。因为其他方面的生活开销较少,即使作假,数额也不会太大。而购房资金在大城市少则几十万,多则上百万,经济利益牵涉巨大,因此,当事人造假的现象较多。
 
Many of the suspected "debt fraud" is reflected in real estate. Because other aspects of living expenses are less, even if fraud, the amount will not be too large. However, in big cities, there are few hundreds of thousands and many millions of purchasing funds, which have huge economic interests. Therefore, there are many fake cases.
 
 
 
当事人在房产争议上涉嫌造假主要体现在房款来源上,即声称在购房时,向父母或其他亲属朋友借款。有的涉嫌造假者还有“欠条”或“协议”佐证。比如,我们在2002年曾代理一起案件。男女离婚时,男方在法庭上声称,两年前,夫妻购房款40万元中的30万元,是向其父母借的款,并且有向父母打的借条,还有父亲的证言以及还款协议。因此,男方要求女方连带承担向父母的借款30万元。而女方则声称,其从未听男方说过购房款中有向男方父母借钱的情况,也不承认购房款中有向男方父母借款的事实,认为这些钱款都是夫妻共同生活中赚来的。而男方则辩称,双方结婚不到3年,根据双方的收人情况,不可能有30万元的存款,而只有另10万元房款的存款,以此印证借款事实。 那么,如何处理该案系争房屋中的借款呢?
 
The suspected counterfeiting in property disputes is mainly reflected in the source of housing funds, i.e. claiming to borrow money from parents or other relatives and friends when purchasing a house. Some suspected counterfeiters also have evidence of "arrears" or "agreements". For example, we represented a case in 2002. When a man and a woman divorced, the man claimed in court that two years ago, 300,000 yuan of 400,000 yuan was borrowed from their parents, and there were debit notes from their parents, as well as father's testimony and repayment agreement. Therefore, the man asks the woman to bear the loan of 300,000 yuan from her parents jointly and severally. The woman claimed that she had never heard the man say that there was a case of borrowing money from his parents in the purchase money, nor did she acknowledge the fact that there was a case of borrowing money from his parents in the purchase money, believing that the money was earned by the husband and wife in their common life. The man argued that the two sides were married less than three years, according to their income, it is impossible to have 300,000 yuan deposit, but only another 100,000 yuan deposit, in order to confirm the fact of borrowing. So, how to deal with the case is the debts in the house?
 
 
 
首先,本案审理的是一起离婚案件,涉及离婚、子女抚养、共同财产分割三部分的内容,但对于涉及第三人的借款法律关系,法院是不好在一个离婚案件中做出认定和处理的。因为一般的离婚案件,当事人只有原、被告双方,而无法列债务、债权人为第三人。如果法院对该债务是否属实进行了处理,可能会侵犯第三人的利益。比如说,认定债务不成立,那么第三人即刚才所述案件中的男方父母连上诉的权利都没有,无疑会大大影响其诉权的行使,导致对其权利的侵害。因此,法院在双方各执一词的情况下,一般不会在一个离婚案件中,处理涉及第三人权益的争议。如果男方认为债务关系存在,可由其父母另案提出一个债务诉讼,由法院处理。
 
First of all, this case is a divorce case, involving divorce, child support and the division of common property. However, for the legal relationship of borrowing money involving a third party, the court is not good to make a determination and deal with in a divorce case. Because in general divorce cases, the parties only have the plaintiff and the defendant, and can not list debts and creditors as third parties. If the court deals with whether the debt is true or not, it may infringe on the interests of a third party. For example, if the debt is not established, then the third party, the male parent in the case just mentioned, does not have the right to appeal, which will undoubtedly greatly affect the exercise of their right to appeal and lead to the infringement of their rights. Therefore, the courts will not normally deal with disputes concerning the rights and interests of third parties in a divorce case when both parties hold the same words. If the man thinks that the debt relationship exists, his parents may bring a debt action in a separate case, which shall be dealt with by the court.
 
 
 
其次,即使男方父母另案起诉,未必胜券在握。为什么呢?因为如果男方父母另案提出了欠款纠纷的诉讼,那么借款事实是否存在就是案件争议的最大焦点。从本案实际来看,鉴于男方与男方父母的特殊利害关系,仅凭欠条可能还不能完全印证债权债务关系的存在。如果女方有异议,还要看该“欠条”记载的借款时间等内容,是否能经得起司法鉴定。不仅如此,还要看男方父母30万元是如何而来,分几次以怎样的形式汇入或交人男方处的,相关的银行材料单据有哪些可以印证?如果仅仅有一张欠条,而无任何其他证据佐证,法院认定30万元债务存在的可能性也不会太大。
 
Secondly, even if the parents of the man sue separately, they may not win. Why? Because if the parents of the man bring a lawsuit for the dispute of arrears in another case, the existence of the fact of borrowing is the biggest focus of the dispute. From the actual point of view of the case, in view of the special interests of the man and his parents, the existence of the relationship between creditor's rights and liabilities may not be fully confirmed by the debt slip alone. If the woman has any objection, it depends on the time of borrowing recorded in the "owe slip" and whether it can withstand judicial expertise. Not only that, but also depends on how 300,000 yuan of male parents came from, how many times they remitted or handed in to the man's office, and what bank documents can be verified? If there is only one IOU and no other evidence to support it, the court will not be too likely to determine the existence of 300,000 yuan of debt.
 
 
 
另外,如果本案根本不存在借款关系,而是男方及其父母伙同伪造证据起诉,不仅要承担民事风险,而且还可能会导致刑事责任。因此,如果债务为假,巨大的心理压力通常也会使很多想造假者望而却步。
 
In addition, if there is no borrowing relationship at all in this case, but the man and his parents and associates falsify evidence to prosecute, not only to bear civil risks, but also may lead to criminal liability. Therefore, if the debt is fake, great psychological pressure will usually deter many people who want to fake it.
 
 
 
2、假造花销的认定及处理
 
2. Recognition and Treatment of Fake Expenses
 
 
 
如果一方当事人想让对方少分在自己名下或自己掌握的财产,可能会向法院提交钱财已消费的证据,以求从自己掌握应分的共同财产中扣减。
 
If one party wants the other party to share less of the property in his own name or in his own possession, he may submit to the court evidence that the money has been consumed in order to deduct from the common property that he owns.
 
 
 
遇到另一方可能涉嫌假造花销的情况,要从以下几个方面进行处理:
 
When the other party may be suspected of counterfeiting expenses, the following aspects should be dealt with:
 
 
 
其一,要看对方所述花费用于何处。
 
First, it depends on where the expenditure is spent.
 
 
 
只有为家庭生活的开销,才能作为共同财产的合理消耗。如果一方给予其姐妹亲友,或一方声称赌博输掉,均不能成为让另一方共同承担消耗的理由。
 
Only expenditure for family life can be used as reasonable consumption of common property. If one party gives its sisters and relatives, or one party claims to lose gambling, it cannot be a reason for the other party to share the expenditure.
 
 
 
其二,要看对方所谓开销,有何证据印证。
 
Secondly, it depends on the other party's so-called expenditure, and what evidence is there to prove it.
 
 
 
比如,对方声称用于家庭开销,但开销数额过大,超出合理范围,就应要求对方举证。比如,对方声称其两个月前取出的3万元用于家庭开销,而一般家庭开销1个月只需一两千元,或对方根本没有承担什么花费,这种情况下,另一方则有权要求一方对于具体开销的项目、大致数额进行说明,并将相关的票证出示。在质证票证时,要看对方出具的是否为正规发票,要分析对方所举票证的真实性与关联性。一般情况下,若对方主张在短时间内大额合理支出,而没有必要的和合理的票证佐证,法院对其诉求难以支持。 其三,要结合一方花销的婚姻背景,分析其开销是否存在主观恶意。 比如,某男在其妻期间,在商场大肆购物,不仅购买了高级时装,而且还购买
 
For example, if the other party claims to spend on household expenses, but the amount of expenditure is too large, beyond a reasonable range, the other party should be asked to give evidence. For example, the other party claims that the 30,000 yuan withdrawn two months ago is used for household expenses, whereas the average household expenditure is only 1,000 yuan or 2,000 yuan a month, or the other party does not bear any expenses at all. In this case, the other party has the right to request one party to explain the specific items and approximate amounts of expenditure, and to show the relevant tickets. When cross-examining a ticket, we should see whether the other party has issued a regular invoice or not, and analyze the authenticity and relevance of the other party's invoice. Generally speaking, if the other side advocates a large amount of reasonable expenditure in a short period of time without necessary and reasonable voting evidence, the court is difficult to support its claim. Thirdly, we should analyze whether there is subjective malice in one party's expenditure according to the marriage background of one party's expenditure. For example, during his wife's life, a man went shopping in the mall, buying not only high-end fashion, but also high-end fashion.

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