On The Cognizance Of The Marital Joint Debt

Each stage of the marriage produces marital debt, the debt can happen before marriage, during marriage and even during the separation before divorce. The debt is a product of life, so there are wide ranges of it, including living debt, business debt, legal debt and other kinds of debt. Depending on how to repayment the debt, marital debt is generally divided into personal debt and joint debt.Marital joint debt is a result of domestic representative between husband and wife, and the identification of the marital joint debt is very important to the couples. From the perspective of the judicial practice, there are many cases that the court of first instance makes a different judgment from the second instance based on the same fact. This phenomenon is because there are too many laws about marital joint debt, so there is a wide variety of definition on marital joint debt rules, and there are conflicts and contradictions between different rules. From the perspective of the legislation, there are three reasons leading to the unified of marital joint debt:Firstly, the cause of different trial is the imbalance of legislative value, in the legislation, although there are many provisions of the law on marital joint debt, but the content is still not perfect, and the existing provisions also conflict with each other, so there comes the phenomenon that court of first instance make a different judgment from the second instance which based on the same fact. Secondly, the theory of marital joint debt is not perfect, family agency is recognized as the basis of marital Joint debt, the uncertain range of joint debt is because of a loss of family agency recognized, which gives judges too much discretions, as a result, problems emerged. Thirdly, the burden of proof is unfair. Judicial practice and the guidance from the Supreme People’s Court has made it clear that, non-borrowing party bears the burden of proof that the debt is personal debt, but non-borrowing party has no advantages of the burden of proof, so the distribution of the burden of proof is inequitable.Based on the above problems, primary solution is to establish a balance measuring system of value, which should not be in favor of the creditor party. Creditors have advantages in trade, non-borrowing party at a disadvantage, so the value should be rebalanced, and should not be more focused on the protection of the interests of creditors. Following ways can help to improve the situation. First, set up the new marital joint debt rules. Daily family debt is the marital joint debt, unless one partner can prove that creditor conspires with debtor and the debt is not for couples to live. In the case of non-liability for daily subsistence needs, the situations determine whether the debt belongs to the marital joint debt or not. So this can prevent the couples to evade debts, also prevents the third-person conspired with one partner from damaging fictional joint debts. Second, improve the family agency. Including a clear subject of the main family agent, scope of the chores and limits for behavior beyond the chores and so on, which can determine the scope of marital joint debt. Finally, redistribute the burden of proof. There is much more marital joint debt with only one partner, and creditor and debtor knows more about the debt, so it is more rational that creditor and the debtor bears the burden of proof.