The Empirical Study On The Common Judicial Judgment Of Couples' Debts

In recent years,with the "Marriage Law Interpretation II" Article 24 "presumption principle" widely applied,the recognition of common debt is not only a hot topic in marriage law research,but also a controversial problem in judicial practice.This paper uses the empirical research method to determine the couples common debt.The 205 cases selected by the "Jufa cases" are the research object,and the results are statistically analyzed and concluded.According to the empirical research on the subject of burden of proof,most courts assigning the burden of proof to the spouse,the ratio of creditors to bear the burden of proof is very low.Besides,the court did not determine the burden of proof in quite a lot of cases.The analysis of the subject of burden of proof and the application of law shows that,the court will distribute the burden of proof to the non borrowing party based on "Marriage Law Interpretation II" Article 24.According to the article,it should be proved by the non-borrowing party that it is not a couples common debt.The analysis of the subject of burden of proof and the result of the referee show that: In the case of the burden of proof of the spouse burden,the results of the referee are mostly identified as couples common debt and spouse proof of the success rate very low;In the case of creditor 's burden of proof,the result of the referee is recognized as personal debt;However,the burden of proof creditors burden ratio is very low,therefore,the creditors are still in a relatively favorable position.The empirical study of factors affecting referee conclusions show that the debt identified,the court judge to distinguish couples common debt and personal debt when we consider ten factors:whether evidencing exceptions of Article 24 or not;whether the debt is used for family life;whether the couple have a common debt;whether the spouse share the benefit;whether the couple are separated or will be divorced;whether the couple have an independent source of income;whether the couple know the facts of the debt;the amount of the debt;whether the debt is used for gambling;whether the debt is beyond the scope of the daily family agency.Among ten factors mentioned above,the biggest factor in the determination of common debtis whether the couple can prove the exclusion of "Marriage Law Interpretation II" Article 24.In addition,whether the debt is used for the common life and whether the couple have the common debt which are two largest factors.Whether the couple are separated or will be divorced or Whether the debt is used for gambling and so on which factors in some cases play a very important role.Through the summary and analysis of the essence of the above referee factors,we can find that a distinction between the couple common debt and personal debt should be combined with the couple to consider a variety of situations.However,the referee factor of the presumption rule of article 24 is too single and should be amended and supplemented.According to the empirical study,identification of the couple common debt,Should adhere to the "for the common life of couples" criteria,to the daily family agents as the boundary,for significantly beyond the scope of daily household agents of the debt,being presumed to be a personal debt,by the creditor to prove the couple common debt;For daily family agents within the scope of debt,is presumed to be a couple common debt,the proof of the spouse being a personal debt.