On The Problems And Perfection Of Couples' Common Debt System

The family is the basic unit of social composition,maintaining a good relationship between husband and wife is an important condition for the family to be stable,and the proper settlement of marital property disputes is conducive to promoting the stability of the relationship between husband and wife and social stability.As an important part of husband and wife's property,the disposition of husband and wife's debt often affects the property rights rights and interests of both husband and wife and third party.It has been widely concerned by the practical and theoretical circles for many years.It has implemented different provisions on joint debts of husband and wife and put forward various theories,covering the fields of classification,determination,scope of responsibility and so on.Even if there is no doubt that the obligation to pay off the debts of a husband and wife when one of the spouses borrows in his own name for the joint life of the husband and wife,the interpretation of the Supreme People's Court on the application of the Marriage Law of the People's Republic of China(II)(amended 2017)Article 24(hereinafter referred to as Article 24)leads to excessive debts that are not used for the joint life of the husband and wife.After the interpretation of the Supreme People's Court on the application of the law in cases involving marital debt disputes(hereinafter referred to as "the new interpretation of disputes "),the scope of " family daily life needs ","creditor's duty to pay attention " and " liabilities " covered by the new provisions is not very clear,which has led to another controversy in the academic circles on whether the debt can establish the joint debt of husband and wife and the way of responsibility after the establishment of joint debt of husband and wife.In the absence of a resolution of the dispute,the provisions of the New Interpretation of the Dispute were incorporated into the Civil Code Marriage and Family(Draft)Bill to include couples with current problems The continuation of the common debt system was debatable.The joint debt system of husband and wife includes the joint debt determination system of husband and wife and the settlement system.In order to find out thespecific problems existing in the joint debt system of husband and wife,this paper analyzes the relevant provisions of the joint debt system of husband and wife.The common debt of husband and wife is not fully classified,so it is difficult to provide a solution to all kinds of disputes.If the standard of daily living of the family is based on the judge's discretion,the common debt signing system has little effect.In the joint debt settlement system of husband and wife,the liability is equal to unlimited joint and several liability,and there is no proportional division of liability;no repayment is set in the case of multiple debts Order,it is difficult to protect the rights and interests of other creditors;there are no additional restrictions on the use of separate property systems for couples,and it is difficult to assume the same responsibilities as for couples-sharing systems for couples;and there is no solution to the problem of repeated litigation.After clarifying the specific problems existing in the joint debt system of husband and wife,the feasible way to perfect the joint debt system of husband and wife is put forward immediately.In the identification system,the basic principle of the joint debt determination system of husband and wife is first set up,so that the joint debt determination system of husband and wife can maintain the transaction security of the trading market while respecting the dual attributes of husband and wife's identity.Secondly,the joint debt of husband and wife is reclassified and different identification methods are set according to the types and causes of different debts.Then,the basic concept is constructed for the joint debt determination system of husband and wife,and the daily family affairs agency right of one of the husband and wife is limited to the daily life needs of the family and reasonable Regulate the duty of creditor attention.Thirdly,by analyzing the advantages and disadvantages of the five representative theories of "contract comparison theory "," time presumption theory "," positive and negative recovery theory "," use agreement theory" and "common debt signing theory ",some suggestions for improvement are put forward for the determination standard.Finally,the burden of proof on the joint debt of husband and wife is reclassified to reduce the burden of proof on creditors while strengthening the burden of proof on the creditors.In the system of paying off the debts of the husband and wife,the corresponding scope of liability property is divided according to the basis of the debt generation.If the joint debt is signed,the husbandand wife shall bear joint and several liability with all the property,but not beyond the debts needed for the daily life of the family Joint and several liability shall be limited only to the joint property of both parties,and spouses who have not borrowed money shall not be required to bear unlimited joint and several liability for their personal property,at the same time,the order of settlement between personal debts and common debts shall be specified,additional restrictions on the separate property system of husband and wife shall be set up,and the problem of repeated litigation shall be resolved.Through the determination of the joint debt of husband and wife and the improvement of the system of settlement,the system of joint debt of husband and wife is perfected to enhance the friendly relations of family members.