Study On Recognition Of The Spousal Common Obligation

Spousal common obligation is the debt of the nature of property and identity, spousal common obligation problem is not only related to the interests of both husband and wife, but also to the interests of creditors and transaction security. In marriage legislation,spousal common obligation is an important part of the debt system,It shows the importance of spousal common obligation in the production management and social life, however, in judicial practice, the same case produce a variety of managing notion, which reflects the non-uniform of judicial discretion, in turn reflects the uniform in the level of legislation. At the same time as China's political, economic, cultural and people's values and way of life has undergone tremendous changes, Property relations and the status of the relationship between spouse are bound to meet the new elements, new content, marriage and the family can no longer be treated simply as a unit of consumption, marriage and family is also an important part of market players. Maintenance transaction security and protection of the interests of creditors has become increasingly popular at the same time, one of the spouses separate legal personality should also be paid more attention. Accelerating social development and social life become richer in content, spousal common obligation finds that it is even more the need for fair standards and uniform requirements, and therefore strongly requested legislation quick to follow up closely with social development. In this paper, the meaning, nature, standards, scope of spousal common obligation is new re-recognized, Especially spousal common obligation standards is re-recognized ,which finds a balance between safeguarding of interests of spouse and protection of transaction security, while maintaining social harmony.This paper is divided into four chapters.The first chapter is that the meaning, nature, significance of recognition of spousal common obligation is addressed. The existing marriage legislation about meaning of spousal common obligation is principle norm, theorists and practitioners have different opinion on meaning of spousal common obligation. I believes that spousal common obligation connotation should include system of the debt must be sufficient, the family unit is not only a consumer but also should be regarded as market transactions, spousal common obligation is not limited to the existence of marriage. Marriage legislation regulate that the nature of the debt be equivalent to several liability, it does not meet the legislation of most countries in the world, ignored the subject of independent legal personality, Germany, Italy and other countries regulate that common property of the couple repay the debt, private property of husband and wife repay lack part. The debt should not be directly equated with joint debt. Section III of this chapter identified the significance of recognition of the debt, the meaning, nature, burden of proof, standards, scope and other aspects is analyzed.The second chapter is that legal principle basis and burden of proof recognition are discussed. spousal common obligation in the doctrine of the legal basis of debt have different views, such as Apparent theory, to achieve efficiency optimization theory, theory of marriage partners. In my opinion, marital status should be legal principle basis, because spouse marriage based on mutual commitment to joint investment, risks, common to the responsibility and liability for damages. German civil code adopts theory of marital status. Judicial interpretation of the provisions of the marriage law distributes the burden of proof directly into one of couple, over-protection of the interests of creditors, the second part of this chapter discuss different circumstances about burden of proof distribution, including spouse and one of spouse, With a view to be more favorable to deal with increasingly complex conjugal debt on the distribution of the burden of proof.The third chapter discusses standards and scope of Spousal common obligation. This chapter is the focus of this paper, a good standard not only to balance interests between creditor and spouse, but also to get harmonization between individual and community interests. Currently there are two criteria: First, for couples to live together. Second, the presumption regulation. In view of the current legislative situation, the background of two standards gets overview, from the perspective of feasibility and relationship between husband and wife, presumption regulation is examined, as the awakening of the rights and property rights, both husband and wife can no longer be regarded as an absolute whole. The debt incurred by one spouse can not take the name of common debt. common benefit standard is consistent with the rights and obligations principle. By this standard, Germany, Switzerland and other countries civil code are found spousal common obligation, the standards is closely related to spouse relationship, and is closely related to matrimonial property regime ,the standard which established in the sharing of benefits, a total of risk stakes is consistent with the basic principles of civil law. Section II of this chapter is about the scope of spousal common obligation, the obligation scope conciseness is beneficial to deal with spousal common obligation problem, this section includes an overview of some foreign countries legislation situation, some controversial issues are analyzed ,at last in enumeration and generalized norm mode, this section make spousal common obligation scope definition and unification.The fourth chapter is the common obligation of spouse defect and perfection of legislation. In marriage legislation, spousal common obligation lack regulation and stipulation, legislation has a dispersion and is not uniform, standards recognition is conflict, spousal common obligation scope is not clear. legal presumption of judicial interpretation has the lack of fairness and justice, the principle of allocation of the burden of proof on the couple of non-borrowing party is extremely unfavorable. In view of the actual situation that spousal common obligation shortcomings is present, the author proposes amendments to legal presumption, the establishment of large amounts of obligation conjugal consent system, the establishment of daily family agency system, marital property registration publicity system and other relevant suggestion. This section makes some above superficial suggestions about legislation perfection of spousal common obligation to help cope with more complex spousal common obligation.