A Study On The Joint Debts Of Husband And Wife

The joint debts of husband and wife not only arise from the existence of marital relationship,but also occur after marriage or divorce.In judicial practice,there are often two kinds of judgments in court of first instance and second instance court,which are entirely different from the same case.There are many reasons for the different judgments in judicial practice.In addition to the judicial reasons,great problems exist in the legislative level to a great extent.In the marriage law,who should first protect the legislative value of the joint debts of husband and wife? The concept and scope of husband and wife's common debts are obscure.The "marriage law" section forty-first concludes the Skopos Theory and the "two judicial interpretation of the marriage law" article twenty-fourth implied presumption of the existence of certain conflicts,the burden of proof is not consistent,and the "two judicial interpretation of the marriage law" provisions of article twenty-fourth of the two kinds of exceptions and difficult to achieve in reality,but in the judicial practice of "judicial interpretation of the marriage law" two article twenty-fourth applicability is very strong,so that the damage to the interests of the non debt side of husband and wife.The burden of proof can not be found between the creditor and the husband and wife,the borrower and the non-debt side of the three parties.At this stage,China lacks the joint signature system of large debts.All of these have created difficulties in determining the common debts of husband and wife.Based on the above reasons,using the method of theory and practice and comparative analysis,suggestions from the legislation value of the matrimonial debt,focus on maintaining the legitimate interests of both spouses,taking into account the legitimate rights and interests of creditors.Then define the concept of husband and wife common debt,and improve the scope of the joint debt of husband and wife.It is suggested that the special provisions of the marriage law should be used to specify the joint debts of husband and wife,and to increase the law of the relative debts of husband and wife.In the system of joint signing of large debts of husband and wife,the reasonable amount and term are deduced by using the relevant knowledge of economics,accounting,currency,banking,civil procedure and small claims procedure.For small amount of debt,it is not necessary for both husband and wife to sign jointly,and to carry out presumption theory is beneficial to transaction efficiency,and the onus of proof lies in the fact that the husband and wife are not the borrower.But if in 6 consecutive months,the husband and wife borrowing consecutive small amount of debt,beyond the prescribed amount,the husband and wife ofnon borrowing parties have the right to defense,the validity of the defense against creditors.For large debts to both husband and wife signed the implementation of Skopos theory,is conducive to the safety of transaction,the creditor should be a duty of care,the burden of proof is also a list of creditors,one of the spouses because of illness,accident cannot be signed and the husband and wife separation or not because of love lead to jointly sign the situation of separation.