Text | Jiang Han
As the chairman of a certain group, Zhang Ping looked down at the paper in his hand, which was his cohabiting girlfriend Wu Shan's civil complaint for divorce. Wu Shan asked the court to order them to divorce, and to divide the common property up to 3510.9 million yuan and the group shares worth10.68 billion yuan.
Holding a civil complaint, Zhang Ping couldn't get over it: Wu Shan and himself didn't register to get married, so why divorce? However, Wu Shan insisted that the couple registered their marriage as early as 12 years ago, and they also issued relevant certificates of the relationship between husband and wife.
It is difficult to go ashore after passion, and cohabitation seems romantic.
Born in June, 1962, 1 1, Zhang Ping was originally an ordinary employee of a supply and marketing cooperative in Sichuan. 1June, 1992, Zhang Ping, unwilling to be mediocre, resolutely resigned from public office and started a business in the sea. Because of his hard work and good popularity, he soon became the largest steel wholesaler in southern Sichuan, with nearly 30 supermarket chains besides two large shopping malls.
However, just when Zhang Ping's career was in full swing, his marriage turned red, and this failed marriage left a scar in his heart that was difficult to heal. After the divorce, Zhang Ping has no shortage of bold and enthusiastic pursuers, but he keeps others at a respectful distance from others. After five years of marriage, he lived alone with his young daughter. Without Wu Shan, perhaps Zhang Ping's single life would continue.
It was the afternoon of June 23rd, 1996. Zhang Ping suddenly received a phone call from a strange woman. The other party said that her name was Wu Shan, and she worked in the advertising department of a local newspaper. Wu Shan told Zhang Ping that the newspaper has introduced new preferential measures and asked him if he would like to take this opportunity to advertise.
Zhang Ping's company used to be a big client of the newspaper, but it is unfamiliar with New Wu Shan, and he wants to meet and discuss it in detail. When I first met Wu Shan, Zhang Ping was attracted by her unique temperament. Because of his affection for Wu Shan, Zhang Ping spent more than 60,000 yuan on advertising at one time. This made Wu Shan very grateful, and their contact became more frequent.
With the deepening of communication, Wu Shan learned that Zhang Ping had already divorced. While expressing her deep sympathy, she also revealed the misfortune of her marriage to him. Because of her husband's playboy, Wu Shan divorced her husband two years ago and lived with her young son and daughter. Maybe it's because we are in the same boat. After that day, Zhang Ping took good care of Wu Shan, both at work and in life.
In August of that year, Zhang Ping temporarily went to Kunming to attend a business negotiation meeting. Thinking of the hardships of life in Wu Shan, Zhang Ping wants to invite her out for fun. Wu has nothing urgent at hand, so he promised to come down.
After the Expo, Zhang Ping took Wu Shan out to play. While they were having fun, it suddenly rained heavily, and both of them were soaked to the skin. That night, Zhang Ping had a high fever. Wu Shan said, regardless of Zhang Ping's block, braved the heavy rain to buy medicine for him.
Ten minutes later, when Wu Shan, who was soaked to the skin, squatted in front of Zhang Ping's bed and carefully gave him medicine, Zhang Ping was filled with emotion: After so many years of divorce, it was just a scene in a dream! Zhang Ping couldn't control his emotions and threw Wu Shan into his arms. ...
After returning to Chengdu from Kunming, Wu Shan quit her job as a newspaper, and they soon moved in together.
At first, both of them felt comfortable and romantic. But life is not "playing house" after all. After a brief sweetness, some shortcomings and deficiencies of Wu Shan were soon exposed to Zhang Ping. Wu Shan in Zhang Ping's eyes is no longer gentle and considerate, but busy buying brand-name clothes, pestering Zhang Ping to buy a house and not taking care of his family. Sometimes Wu Shan's relatives ask her for money when they are in trouble. She always borrows it without saying anything, and the money is spread equally at home. For these reasons, when Wu Shan asked Zhang Ping to get married, Zhang Ping didn't agree. He even regretted being with Wu Shan.
A blunder in life? The single rich suddenly fell into the "divorce door"
1May, 1998, Zhang Ping arranged for Wu Shan to be the deputy manager of the department of shopping malls in his own shopping mall. He thought, if two people don't fit together in the future, at least Wu Shan can have his own career, so that his heart will feel better.
In order to make Wu Shan familiar with the business as soon as possible, Zhang Ping began to teach her hand in hand. Soon, she will be able to manage such a big shopping mall in good order by herself.
Wu Shan is grateful to see that Zhang Ping trusts herself so much. She believed that Zhang Ping loved her, so she took this opportunity to ask Zhang Ping to get married again.
However, Zhang Ping is still vague. In fact, he always wanted Wu Shan to have a showdown, which showed that two people were not suitable for each other. However, he has always attached great importance to talents. Then he thought: If we break up, will Wu Shan leave his company? Anyway, she is really a good helper in business. See Zhang Ping evasive, Wu Shan was very angry.
After a period of time, every day when she came home from the mall, Wu Shan felt dejected. She began to worry about her future, fearing that Zhang Ping would suddenly kick herself away from him like some rich people.
Time soon arrived in 2006. Shortly after the Spring Festival, because Zhang Ping was going to Chengdu to take care of his sick father, he entrusted an important task to Wu Shan, promoted her to the manager of a department store, and handed over all the business of the department store to Wu Shan. But Zhang Ping never imagined that his trust would bring unexpected results.
Sitting at the top of the department store, Wu Shan began to "cut a dash". She put her second brother Wu Jun, who used to work in a bank, into the company group as the head of the department; Since 2006, Wu Jun has served as the deputy general manager of the Group. According to the later investigation by the Audit Department of the Group, in the first half of 2007, a shopping mall managed by Wu Jun was in deficit of 6,543,807,000 yuan.
On March 1 2008, Wu Shan transferred more than 88 million yuan to Zhangping Bank Card, and then transferred more than 86 million yuan. According to the situation that the group later found out, the real estate purchased by Wu Shan only with credit cards was as high as10 million yuan, and the amount transferred from bank cards was as high as tens of millions of yuan. ...
In February 2008, Zhang Ping, who was in Chengdu, received a report from the cadres and workers of the company group that Wu Shan was suspected of taking advantage of his position to occupy the company's assets. At first, Zhang Ping didn't believe it, but when he came to Zigong Industrial and Commercial Bureau to retrieve the company files, he found that Wu Shan forged the industrial and commercial registration documents and transferred 29.98% of the shares of the group to her name. The company's files have also been changed and tampered with many times.
In this regard, Zhang Ping was extremely shocked and immediately found an accounting firm to conduct an audit. According to the special audit report of funds completed by the accounting firm, during Wu Shan's tenure as general manager, the total amount of fraud reached 93.05 million yuan!
On August 20th, 2008, Zhang Ping convened a board meeting to remove Wu Shan from the post of general manager. When Wu Shan left the company, Zhang Ping was ready to have a good talk with her, but Wu Shan looked indifferent and threw out a sentence: "You will regret it!"
Because of the urgent need to deal with the mess left by Wu Shan, Zhang Ping didn't think much about what Wu Shan said when he left. However, on September 5, 2008, he suddenly received a civil complaint about Wu Shan's divorce. In the complaint, Wu Shan asked the court to order her to divorce Zhang Ping, and demanded to divide the common property of 35 1.9 million yuan and the group shares worth 65.438+68 billion yuan.
How to end the feud between true and false marriage 12?
Holding a subpoena served by the court, Zhang Ping was very unhappy: How can I get there without getting married? Zhang Ping thinks that Wu Shan did something drastic on impulse.
So, based on the idea of letting things go naturally, Zhang Ping found Wu Shan, advised her not to be so unreasonable, and told her that if he could return the misappropriated company money, he could not pursue her responsibility. But Wu Shan seemed determined to "divorce" and ignored Zhang Ping's words.
So, shortly after receiving a summons from the court, Zhang Pingsui took the local civil affairs bureau to court on the grounds that there was no husband-wife relationship between him and Wu Shan, demanding that his marriage registration with Wu Shan be revoked. However, before the case was heard, the court issued a notice of hearing about his divorce from Wu Shan.
In June 2008 165438+ 10/0, the court held a hearing. In court, Wu Shan asked the court to divorce her and Zhang Ping, and divide Zhang Ping's 8 houses, many famous cars, millions of deposits, stocks and funds. In addition, she is currently unemployed and should get 80% of the common property.
Subsequently, Wu Shan provided the court with an Application for Certificate of Husband and Wife Relationship stamped with the Special Seal for Marriage Registration of Civil Affairs Bureau, which proved that she and Zhang Ping were legally married. According to the application, the date of "marriage registration" between Wu Shan and Zhang Ping is "199765438+1October 27th". 200165438+February 3 1 The Civil Affairs Bureau issued a certificate of husband-wife relationship due to the loss of their marriage certificates. The applicant column and the witness column are signed by "Zhang Ping" and "Wu Shan" according to their handprints.
In the face of Wu Shan's "Certificate of Husband and Wife Relationship" and other materials, Zhang Ping was puzzled because the signature on it was not his own at all.
In order to find out the truth of the matter, on February 8, 2008, lawyer Pu Jie rushed to the Civil Affairs Bureau and got what Wu Shan called "husband and wife certificate". The general content of the certificate is: Zhang Ping and Wu Shan registered their marriage in our hospital on June 27th, 2006, with the marriage certificate number of. Then, Pujie went to Xinjie Office to retrieve the marriage registration file of199765438+1October 27th.
However, the next day, the court served a summons on Zhang Ping again: the case is scheduled to be reopened at 9: 00 am on February 17, 2008.
When Pu Jie was informed, he immediately contacted the court judge, hoping to reschedule the trial, and then drafted an application for postponing the trial. However, the court did not adopt it and conducted a trial in absentia on February 17, 2007. Prior to this, the handwriting and other appraisal reports that Zhang Ping applied to the Judicial Appraisal Center of Southwest University of Political Science and Law had not yet yielded results.
On the eve of New Year's Day in 2009, the judicial appraisal opinion issued by the Judicial Appraisal Center of Southwest University of Political Science and Law was "late". According to this opinion:
1. It cannot be recognized that1997 65438+1the signature of "Zhang Ping" on the marriage application registration form on October 27th was written by Zhang Ping;
2. It is determined that the application signed by "Zhang Ping" in the column of "Applicant" was not written by Zhang Ping;
3. It is now recognized that the handwritten character "Wu Shan" and the following two lines in the marriage application registration book of1997 65438+1October 27th were written by Wu Shan, and the signature of "Zhang Ping" in the witness column of 2001was written by Wu Shan. Seal of "Sichuan Group Co., Ltd." on the certificate of marital status on June 4, 2002 and February 36, 2006, 2006, 2006, 2006, 2006, 2006 and 2006.
Looking at the appraisal conclusion, Zhang Pingchang breathed a sigh of relief. However, before he recovered, the court informed him that he would be sentenced on June 24, 2009. Zhang Ping and his lawyer were shocked: the handwriting appraisal report has not been reviewed. How to pronounce the sentence?
On June 24th, 2009, the court delivered the verdict as scheduled. The court issued the Application for Granting Divorce between Zhang Ping and Wu Shan, and Wu Shan received 55% of Zhang Ping's personal property.
At the same time, the court seized three properties, all bank deposits, stocks and fund accounts under Zhang Ping's name. According to Wu Shan's application for property preservation, she should get 55% of the joint property of husband and wife. Since it is 55% of the joint property of husband and wife, the court can only seal up 55% of all the property under Zhang Ping's personal name, but at that time it sealed up all the property under Zhang Ping's name, which made Zhang Ping feel incredible.
Due to the serious shortage of liquidity, Zhang Ping's group soon got into trouble, and the capital chain was on the verge of breaking, so the group had to close six supermarket chains urgently. The employees of the company were all panicked when they got the news, which caused serious damage to the company's operation.
In February 2009, Zhang Ping appealed to the Intermediate People's Court on the main reason that the court of first instance violated the law in the trial procedure. In his appeal, he also proposed that the marriage registration should be revoked on the basis of the trial results of the previous administrative litigation. In the case that the administrative litigation has not yet been heard, it shall be handled as suspension of litigation. At the same time, it is pointed out that Wushan requested the court to transfer the case to the public security organ for investigation because of various crimes such as embezzlement and forgery of official documents.
Soon, the case was transferred to the Intermediate People's Court.
On the morning of April 1 1, 2009, the second trial was held on time. In this trial, the court mainly focused on three controversial issues: first, whether the trial procedure of first instance is illegal; Second, whether there is a marriage relationship between Zhang Ping and Wu Shan; The third is whether the property divided by the first-instance judgment belongs to the joint property of husband and wife.
During the trial, Wu Shan and his attorney said: Although the law clearly stipulates that both parties to the marriage must be present in person, it does not clearly stipulate that both parties to the marriage must sign in person, and witnesses can sign on behalf of the party who has no writing ability.
Hearing Wu Shan's defense, Zhang Ping was puzzled: He is a college student, and does he need someone to sign his name?
Now, Zhang Ping, who is waiting for the result of the second trial, feels exhausted. He never imagined that after getting rid of the shadow of five years of marriage, his emotions and career suffered a heavy blow again. ...
Lawyer's review
Zhang Weiwei (lawyer)
In view of the focus of the dispute in the second instance, we briefly comment as follows:
First, there are many shortcomings in the first-instance procedure.
1. restricts Zhang Ping's right of proof.
Zhang Ping didn't know that Wu Shan had so much evidence of forged marriage relationship until the trial in the first instance, so it can be logically inferred that summary procedure is applicable to this case. Therefore, when Zhang Ping applied for an extension of the trial in time, the court should grant an extension of the trial according to the relevant judicial interpretation to protect Zhang Ping's right to adduce evidence. In this case, the court refused to postpone the trial and insisted on a hasty judgment, which was obviously improper.
2. Before canceling the judgment of the administrative litigation case of marriage registration, there was no ruling to suspend the divorce proceedings according to law.
According to the relevant regulations, the court should decide to suspend the divorce proceedings, and then resume the divorce proceedings after Zhang Ping's administrative litigation judgment of canceling marriage registration comes out. It is also illegal for the court not to do so, which directly affects Zhang Ping's substantive rights.
The preservation measures taken for Zhang Ping's property are beyond the scope stipulated by law.
In this case, Wu Shan demanded half of Zhang Ping's property, and the preservation guarantee issued by him also explained the scope of the request, but the court seized all Zhang Ping's property, which was obviously illegal.
Second, the marriage relationship between Zhang Ping and Wu Shan needs to be questioned.
Wu Shan's attorney's statement that marriage registration does not require his signature is sophistry and logically untenable. The law clearly stipulates that both parties to a marriage must be present in person to ensure that marriage registration is the true expression of the parties. On the premise that one party has the writing ability, there is no reason for others to sign on behalf of it, and the marriage registration office is not allowed to do so. It can be seen that Zhang Ping's statement that Wu Shan was authorized to sign on his behalf is not valid.
Thirdly, judging whether the property divided by the first-instance judgment belongs to the joint property of husband and wife depends on whether there is a marriage relationship between Wu Shan and Zhang Ping.
If there is no marriage, there is no division of common property at all; Assuming that the premise is established, it depends on whether the property recognized by the court was obtained within marriage. In the absence of agreement, only the property acquired within marriage is the joint property of husband and wife, the property before marriage belongs to personal property, and only the income from marriage belongs to the joint property of husband and wife.