The Analysis And Improvement Of The Applicable Standard Of Article 24 Of The Judicial Interpretation (Ⅱ) Of Marriage Law

The identification of matrimonial community debt has always been a hot topic,the standards of which are not only related to property rights allocation between the couple,but also associated with the protection for creditor’s interests and transaction security amid today’s increasingly prosperous environment of private lending and market dealings.Article 24 of the "Interpretation of the Supreme People’s Court on Several Issues Concerning the Applicable Marriage Law of the People’s Republic of China(II)"(hereinafter referred to as "Article 24")established the presumption standard for the community debt determination of the couple involving a third party,but it caused various controversies in the society.At present,Chinese scholars have made detailed research on the formulation purpose,expected function,content and theoretical foundation of this article,but it lacks of systematic research on and data support for its applicable standard.Through empirical analysis on the relevant data of the judgments applicable to this article from 2013 to 2016 in three provinces(municipalities)located in the northeastern region,the central and western regions,and the southeastern coastal area of China,the practical problems of this article in terms of the applicable standard were concluded: the selection of the applicable standard of "Article 24" in various places is confusing and there are some cases in which this article is simply and mechanically applied.However,the emergence of these problems stems from the loopholes existing in the literal expression of "Article 24",which fails to fully demonstrate the purpose and connotation that the "Article 24" planner wishes to give them,resulting in different understanding in practice and further leading to differentapplicable standards and ideas reflecting different value choices.Thereinto,the "consideration of a consensual standard" is supported by the "Agent of Daily Family Affairs" and "Apparent Agency" theories,which embodies the idea that the debt which can be considered as being expressed in the common meaning of the couple while is borrowed by the husband or wife in his or her own name should be directly recognized as the matrimonial community debt without presumption as per the"Article 24".With the legal property system as its theoretical foundation,the"Standard of Living Together for Community Debt Presumption" has absorbed the"Living Together" standard established in the "Marriage Law" and "Article 24" will only apply when the husband or wife personally contracts a loan and uses it for the common life,and then the debt is presumed to be a community debt of the couple.The application idea of the "Exclusion Standard of Community Debt Presumption" is based on the "Internal and External Differences" theory of the community debt determination of the couple,which believes that as long as it is a dispute concerning the community debt determination of the couple involving a third party,the "Article24" shall apply and the debt will be presumed to be a community debt.In the judicial practice,these three applicable standards are often used together.In order to solve the practical dilemma of this "Article 24" applicable standard,this paper clarifies the applicable conditions of "Article 24" through the methods of literal interpretation and system interpretation,and determines that its application needs to meet the following three conditions: First,the debt involved is limited to the unilateral debt that cannot be considered as "consensual",and such kind of debt doesn’t have the appearance of "Agent of Daily Family Affairs" and "Apparent Agency";otherwise,it will be directly determined as the community debt of the couple and the presumption of law established in "Article 24" cannot be applied;Second,the creditor must be unable to determine the nature of the debt at the time of the debt-taking act,because the fact that the "presumption" requires to be presumed cannot be an existing fact.Thus,only the debt involved that does not have a definite personal debt nature can be presumed;Third,the debt needs to be used for the common life of the husband and wife,which is consistent with the main purpose of the legal property system in China.The argument for the applicable conditions of"Article 24" is to eventually construct a unified applicable standard for "Article 24",in the hope of obtaining a reasonable and consistent solution to the community debt determination problem of the husband and wife.However,in order to make the standard applied in practice in a better way,the loopholes in the literal expression of"Article 24" should also be amended to avoid differences in the literal meanings and resolve various disputes arising from "Article 24" from the root.