Research On The Identification Rules Of Marital Common Debt

With the diversified development of the social economy,marriage and family disputes have increased year by year.Many marriage and property disputes,private lending disputes,etc.all involve a very critical issue--the determination of the husband and wife’s common debt.Regarding the issue of husband and wife’s common debt,China’s “Marriage Law” and related judicial interpretations mainly provide for the repayment of husband and wife’s common debt,but they do not specify which debts belong to husband and wife’s common debt,nor do they explain the meaning of husband and wife’s common debt.This has also brought a lot of difficulties to judicial practice.It is difficult for different courts to reach a consensus on the determination of the couple’s joint debt,and it’s not uncommon that similar cases have different verdicts.In addition,under the background of rapid social and economic changes,more equal social status of men and women,and the continuous improvement of people’s ideology and consciousness,the marriage and property system has also shown a trend of diversification,which undoubtedly makes the determination of the common debt of husband and wife more complicated.How to balance social and legal benefits,draw a reasonable boundary between husband and wife’s common debt and personal debt,and establish the rules for the recognition of husband and wife’s common debt are of great significance to the improvement of the legal system and judicial practice.The article adopts the research method combining law analysis and case empirical research,and aims to carry out specific discussions through the following four chapters for the problems to be studied.The first chapter combs the legislative status quo and related theories of the determination of the husband and wife’s common debt,introduces the problems in the application of legal rules in judicial application,and explains the difficulties faced by judicial practice.The second chapter makes a theoretical analysis of the current rules for determining the common debt of husband and wife.First,it starts with the related basic concepts and legal principles of the couple’s common debt determination rule,and then analyzes the main factors and minor factors of the couple’s common debt determination according to the current legal rules,and analyzes the determination of the nature of the debt under four special circumstances.Chapter III,in accordance with the provisions of the December 2019 version of the "Civil Code(Draft)" on the common debt of husband and wife,deeply analyzes the legislative concept and value orientation of the civil code on the determination of the common debt of husband and wife,which can be summarized into three aspects: The burden of proof for the purpose of borrowing is appropriately allocated to creditors to balance the interests of creditors and non-borrowing parties,balance the security of the transaction and the value orientation of fairness and justice;second,delegating the right to determine the common debt of the husband and wife to the judge,which is determined by the judge according to the actual situation of the case Whether it belongs to the joint debt of the husband and wife;third,the establishment of a "co-debt co-signing" system to guide creditors to avoid risks and control disputes at the source when the debt is established.The fourth chapter is based on the research in the previous chapters,and puts forward suggestions on improving the rules for determining the common debt of husband and wife.On the one hand,the value orientation of the couple’s common debt determination rule needs to be improved.When determining the couple’s common debt,care should be taken to protect women’s property rights and interests,while maintaining the stability of marriage while ensuring the order of transactions;Relevant supporting measures need to be improved.The article proposes to further clarify the basis for the establishment of the "common" debt of the couple’s "common" debt,improve the daily family agency system and the property system agreed by the husband and wife,and unify the judges’ rules to avoid the phenomenon of different judgments in the same case.