China: 最高法:未经配偶同意,以家庭财产提供担保系无权处分

Last Updated: 11 September 2019
Article by King & Capital Law Firm

京都家事诉讼专栏 | 最高法:未经配偶同意,以家庭财产提供担保系无权处分

裁判要旨:

  夫妻一方作为保证人在保证合同中签字,其个人在提供担保时无需征得配偶即财产共有人的同意,配偶在该保证合同中未签字并不影响签字一方个人保证责任的成立与生效,签字一方以个人财产提供担保的意思表示合法有效。

  但其在未征得配偶即财产共有人同意的情形下,承诺以家庭财产为他人提供担保,系无权处分;配偶对此不予追认的,该承诺无效,并对配偶不具有法律约束力。

  法律事实图:

  事实与理由:

  2014年3月6日,贾某(甲方)与借款人马某、李某(乙方)及保证人赵某签订《借款合同》。合同载明贾某将人民币1000万元出借给马某和李某,马李二人作为共同借款人,对借款互负连带清偿责任;保证人赵某承诺:"对本合同约定乙方承担的借款本息及违约责任、甲方实现债权的全部支出,均愿以保证人个人及家庭财产承担连带保证责任;保证期限至甲方收回借款本息全额,和乙方出现违约时甲方主张的权利全部实现为止;保证人承担以上保证责任已经征得财产共有人同意,并与财产共有人共同签署本合同。"合同订立后,甲乙双方除马某外均完成签字,赵某也在保证人一栏签字,而保证人(配偶)财产共有人处空白。

  诉讼请求:

  冯某请求依法确认马某、李某与贾某于2014年3月6日所签订的《借款合同》中的保证条款无效。

  一审法院判决:

  2014年3月6日出借人贾某与借款人某、保证人赵某签订的两份《借款合同》保证条款中赵某承诺以家庭财产承担连带保证责任的部分无效。

  二审法院裁定:

  法院认为:赵某以个人名义设立的保证债务,系无偿保证,该保证债务的设定并没有基于夫妻共同生活的可能,应认定为赵某个人债务。冯某不是借款合同的当事人,不具备诉讼利益。

  裁定:一、撤销一审民事判决;二、驳回冯某的起诉。

  再审认为:

  本案再审的争议焦点系:(一)二审裁定驳回冯某起诉是否正确,即冯某是否系本案适格原告主体的问题;(二)案涉《借款合同》中保证条款的效力问题。

  (一)关于二审裁定驳回冯某起诉是否正确,即冯某是否系本案适格原告主体的问题。

  本案中,冯某起诉主张确认合同中保证条款无效,系为维护其自身合法权益。赵某与冯某系夫妻关系,案涉《借款合同》的保证条款不仅涉及到赵某的个人财产,更重要的是涉及赵某和冯某的夫妻共同财产,因为在夫妻关系存续期间,除非夫妻双方有分别财产的约定,否则夫或者妻的收入都为夫妻共有财产,且为共同共有而不是按份共有,归夫或者妻一方的个人财产实际上很少。换言之,真正能起到保证作用的是夫妻共同财产,因此,该保证条款直接影响到冯某的财产利益。冯某现对合同内容中保证条款不予追认,其与本案有直接利害关系,具有诉讼利益。依据《中华人民共和国民事诉讼法 》第一百一十九条第一项之规定,冯某系本案适格原告,原裁定认为冯某不具有原告主体资格,裁定驳回冯某的起诉,确属错误,应予纠正。

  (二)关于案涉《借款合同》中保证条款的效力问题。

  案涉《借款合同》中第五条保证条款约定:保证人赵某承诺以个人及家庭财产承担连带保证责任,其承担保证责任已征得财产共有人同意,并与财产共有人共同签署合同。冯某作为赵某的配偶在财产共有人处未签署姓名。

  本院认为,赵某本人作为保证人已在合同保证人处签名,其个人在提供担保时无需征得财产共有人的同意,冯某在该合同中未签署姓名并不影响赵某个人保证责任的成立与生效,赵某以个人财产提供的担保的意思表示合法有效。赵某在未征得财产共有人冯某同意的情形下,承诺以家庭财产为他人提供担保,系无权处分,冯某对此不予追认,该承诺无效,并对冯某不具有法律约束力。

  本案一审判决认定本案事实清楚,适用法律正确,应予维持。

  再审判决:

  撤销二审民事裁定;维持一审民事判决。

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