Research On The Recognition And Repayment Of Joint Debt Of Husband And Wife

The recognition and settlement of conjugal debts have troubled judicial practice for many years and have been controversial in the theoretical circle.The main reasons are that the legal norms concerning conjugal debts are scattered,i.e.scattered in judicial interpretations and related notices,the rules for recognizing the nature of conjugal debts are uneven,the distribution of burden of proof is unfair,and the liability for settlement of conjugal debts is defined as joint and several liability.In particular,the widespread application of the " time presumption rule" has led to a large number of innocent spouses in a situation of huge debts in reality.The Judicial Interpretation on Relevant Issues Concerning the Application of Laws in Hearing Disputes Involving Joint Debts of Husband and Wife(hereinafter referred to as " the New Interpretation")issued by the Supreme Court in early 2018 uses " the consent of husband and wife" and " the purpose of debt use" as the criteria for determining joint debts of husband and wife,redistributing the burden of proof to achieve the legal goal of balancing the legitimate rights and interests of creditors and the non-debtor spouse.However,due to the ambiguous meaning of the new interpretation itself,the unclear definition of the scope of daily life needs,the allocation mechanism of burden of proof,the improper recognition of the nature of the joint debts of husband and wife and the lack of correction of the defects in the handling of the settlement responsibilities,etc.,a large number of different judgments on the same case have occurred in judicial practice,damaging the legitimate rights and interests of creditors and the unnamed debtor couple.With the rapid development of China’s market economy,the structure of family property has also undergone earth-shaking changes.The public’s family concept and investment concept have also begun to show a trend of diversification,resulting in more complicated debt types and increased risks.In this context,it is particularly important to resolve disputes over marital debts as soon as possible.In order to solve this difficult problem,we must first clearly define the concept,nature and characteristics of the conjugal joint debt,so as to make the research object more specific.Then,through sorting out the current legal norms,we should reflect onthe existing defects such as incomplete system,contradictions in the recognition criteria,vague scope of conjugal joint debt,uneven distribution of burden of proof,limitations in the rules of liability for repayment,etc.The author also uses empirical analysis to analyze and study the current situation of applicable laws in judicial practice,and then through comparative analysis,combs the rules of identification and settlement of husband and wife in countries with the same property system as China,and puts forward perfect measures for the identification and settlement of common debts of husband and wife in China from both legislative and judicial aspects based on the relevant legal experience of foreign countries.In legislation,we should establish a complete and systematic legislative system,perfect the criteria for determining the common debts of husband and wife,set up a daily household agency system,establish a system for registering and publicizing the agreed property of husband and wife and a system for determining the common debts of husband and wife during their separation,and clarify the scope and sequence of repayment of such debts on the basis of defining the nature of the debts of husband and wife as common debts.From a judicial point of view,judges should correctly exercise their discretion,correctly grasp the criteria for determining the joint debts of husband and wife,especially for the concrete determination of the case of " joint production and operation of husband and wife" which is a large number of complicated and controversial types in practice,and finally reasonably and flexibly allocate the burden of proof for the joint debts of husband and wife based on the different types of joint debts of husband and wife.