A Study On The Burden Of Proof Of The Recognition Of Personal Nominal Debt As The Joint Debt Of Husband And Wife

Since 2005,the number of debt disputes between husband and wife in China has been increasing for more than ten years.At present,the debt disputes between husband and wife are very common.Whether the couple's debt disputes can be properly resolved and whether the legitimate rights and interests of the parties involved can be effectively protected has become the concern of the parties involved in the case,especially the recognition of debt in the name of individuals as the couple's joint debt,which has become the core concern of the parties involved in the case and attracted the attention of the public.Whether the personal nominal debt can be recognized as the joint debt of husband and wife is closely related to the vital interests of all parties,and whether the interest litigation can be properly stopped is related to the harmonious and stable development of our society.In the process of whether the personal nominal debt can be recognized as the joint debt of husband and wife,the distribution of the burden of proof is the most important,which directly affects the final judgment of debt nature.However,there are some practical problems in the cases of marriage debt disputes,such as the evidence information is difficult to be obtained by the third party,and the spouse who is not in debt has no understanding of the debt situation.Both the creditor and the spouse who is not in debt have some difficulties in obtaining the evidence information,which makes it difficult to properly solve the debt disputes between husband and wife.In this regard,the relevant laws and regulations of our country are not clear,and there are also cases with different judgments in judicial practice.Research on the relevant burden of proof can promote the improvement of relevant legislation in China theoretically;from the perspective of judicial practice,it can help the court to reasonably allocate the burden of proof,obtain favorable evidence information to infer the facts of the case,and clarify the rights and obligations of the parties involved in the case.In this paper,historical analysis,literature analysis,empirical analysis,value analysis and other research methods are adopted,closely around the theme of "family daily life needs" in the debt dispute between husband and wife.Based on the research of relevant literature at home and abroad,combined with the empirical analysis in judicial practice,this paper discusses "family daily life" from the perspective of system interpretation,historical interpretation and purpose interpretation The standard of "living needs",then from the scope definition,consideration factors,exclusions,debt amount definition and other aspects to clarify the determination elements of the standard of "family daily life needs",and finally redesign the distribution rules of the burden of proof in the current marital debt disputes under the standard of "family daily life needs".According to the specific scope of family daily life needs,we should combine social concepts and people's living habits,properly learn from the experience of comparative law,and comprehensively analyze and define through setting the purpose of family daily life needs and whether it uses legal means in the process of achieving the purpose.On this basis,it is also necessary to make appropriate restrictions on the "needs of daily life of the family",excluding the types of transactions that have a significant impact on daily life of the family.For the determination of the critical point of the amount of debt "beyond the daily needs of the family",we can roughly refer to the amount of five times of the per capita disposable income and seven times of the per capita living consumption expenditure in the province where we are located,combined with the specific situation of the case and the family income.The distribution of the burden of proof for personal nominal debt as the joint debt of husband and wife can be carried out according to the "four step theory" plan.Specifically speaking: the first step is to clarify the type of debt;the second step is to apply the judgment of legal elements;the third step is to identify the premise facts under the presumption rule;the fourth step is to reasonably allocate the burden of proof.