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BCI & BIMC Ascertainment Cases ▍Whether or not the real estate located in Mainland China that was purchased by one spouse of the Taiwanese couple can be determined as jointly owned? If so, whether this can be alleged against a third party?

Come from:BCI&BIMC    Date:2019.11.24 Hits:31 

I. Facts

Due to the fact that the appellant Zu Sihui (hereinafter refer to as Zu) refused to accept the civil judgement (2015) Shennan Fa Min San Chu Zi No. 1235, which was ruled by Shenzhen Nanshan District People's Court on real estate contract dispute among Zu, the appellee Zhong Ruiyuan, Zhong Xudong, and the third party, Bank of China (Shenzhen Luohu Branch). Zu filed the appeal to this court (hereinafter referred to as the court).

Case Reference: (2017) Yue 03 Min Zhong No.2563.


II. ISSUES IN THIS CASE

Both the appellant Zu Sihui (hereinafter refer to as Zu) and Cui Yanzhi (hereinafter refer to as Cui, Zu's spouse), the third party in this case, are residents of Taiwan, China. Furthermore, Cui Yanzhi disagreed with the sale of the real estate at issue. In order to determine the property nature of the disputed real estate, the court entrusted BIC & BIMC to produce a legal opinion on the following issues:

01: Given that Zu and Cui remain residents of Taiwan all this time since they got married on January 6, 1992, whether the properties acquired or owned by either of them during their marriage are jointly or respectively owned?

02: The real estate purchased during the marriage between the Taiwanese couple was registered under the name of one party while the majority of their family's income came from the other. Besides, neither of them raised any objection to this extent and unanimously stated that the property concerned is jointly owned by nature. In this case, pursuant to laws in Taiwan, whether the property concerned shall be determined as jointly owned, and whether this can be alleged against a third party?


III. Law Ascertainment

On October 12, 2018, BIC & BIMC issued an "Law Ascertainment Opinion" on the aforesaid issues as follows:

01: Whether the properties acquired or owned by either of the couple during their marriage are jointly owned or respectively owned?

It is first to be determined whether or not the couple have agreed in written form on "separation of property regime" or "community of property regime" as their marital property regime before or after getting married. If they subscribed the former, the husband and the wife retained the ownership of the property respectively, whether acquired before or after they got married. In other words, the property of either the wife or the husband acquired or owned during the marriage shall be owned respectively.

If the couple subscribed the latter, it is first to be examined whether or not the property of the wife or the husband acquired or owned during the marriage is unique to that party. If so, the property shall be owned respectively, and if not, it is to be determined according to the scope of the community property. If the property is within the scope of community property, it is jointly owned by the couple; and if not, the separate property regime applies and thus it shall be owned by the wife or the husband respectively.

Where the husband and the wife have not agreed in writing on the matrimonial property regime, then the statutory regime shall be applied. In accordance with the "statutory property regime" stipulated in Family Part of the Civil Code (Taiwan), the separate property regime applies. The property of either the husband or the wife shall be divided into the property acquired before marriage and the property acquired in marriage, and shall be owned respectively.

If the couple have changed the property regime during their marriage, the ownership of the property shall be determined in accordance with the relevant matrimonial property regimes that successively apply.

02: In the given case, whether the property concerned shall be determined as jointly owned by the couple? And whether this can be alleged against a third party?

According to the laws of Taiwan, a mere unanimous statement by the couple which acknowledged the property as jointly owned is not sufficient to determine that the disputed real estate is community property of the couple. Rather, it must be examined whether the couple have reached an agreement in written form to adopt community of property regime according to Article 1007 and Article 1008-1, or whether they have agreed that the real property at issue shall be jointly owned and then registered the property with a court in accordance with Article 1008 of the Civil Law as well as Article101-1 of the Non-Contentious Matter Law; in the event of any change of the domicile before August 5, 2005, it shall be re-registered within three months after the change. Only then the fact, that the couple have agreed that the real estate concerned shall be jointly owned, can be alleged against a third party.  


IV. Judgement

Zu and Cui were married in Taiwan on January 6, 1991. The real estate at issue was registered under the name of Zu, and it was acquired during their marriage.

In the "Law Ascertainment Opinion" issued by the BCI & BIMC, the law of Taiwan prescribed that it must first be considered whether or not the couple have agreed in written form to adopt "community of property regime" or "separation of property regime" as their marital property regime before or after getting married. If the couple adopted separate property regime or agreed that properties will be jointly owned, such arrangement can only have the effect against a third party if it has been registered at Courts in Taiwan.

Where the husband and the wife have not agreed in writing on the matrimonial property regime, the statutory regime shall be applied, which means that the property of either the husband or the wife shall be divided into the property acquired before marriage and the property acquired in marriage, and shall be owned respectively.

The court held that the aforesaid Law Ascertainment Opinion was issued by a practicing lawyer in Taiwan, which detailed the contents of the law of Taiwan and provided opinions on its application. Furthermore, the authenticity of the issuer's identity was confirmed by notary agencies in Taiwan and Mainland China. Thus, the court adopted the Law Ascertainment Opinion as reference.

In view of Zu and Cui's inability to submit their written agreement on community of property regime registered in the Taiwan Court, the court held that the disputed property shall be solely owned by Zu Sihui. Therefore, the court does not uphold Zu's claim, that she was not able to continue performance her duties under the sale contract of the real estate based on the fact that her spouse Cui was not aware of and did not agree on the sale.


Read the original: 藍海查明案例 ▍祖思慧、鐘瑞原房屋買賣合同糾紛案

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