| With the rapid development of China’s economy,great changes are taking place in people’s values and lifestyles.The group characteristics between husband and wife are gradually weakened,which is reflected in the booming of private lending and the increasing divorce rate in the economic field and the marriage and family field.Dealing with the problem of joint debt identification of husband and wife well is conducive to the effective realization of creditors’ rights,the harmonious and happy family life of tens of millions of couples,and the development of China’s socialist market economy and the construction of a harmonious society.The current marriage law of our country only stipulates the principle clauses for determining the joint debt of husband and wife,and the judicial interpretations formulated by the Supreme Court on the same articles are also quite different.Private lending and joint debt of husband and wife often cross each other.It is a big problem in judicial practice whether one side of the husband and wife can recognize the joint debt of husband and wife when borrowing from abroad.This paper selects typical cases from the judicial practice,and analyzes the two controversial focuses in the cases of determining the joint debt of husband and wife.The first focus of controversy is the recognition standard of joint debt of husband and wife.According to the relevant provisions of law and judicial interpretation,the following four main identification rules are analyzed and sorted out,which are the use theory,the time theory,the common agreement theory and the daily family affairs agency theory.At the same time,the author analyzes these four rules from three aspects of legislative function,value orientation and application relationship,and thinks that the legislative value functions embodied in them are different,and there should be asequence in the application,that is,first apply the theory of common agreement,then apply the theory of daily household agent,then apply the theory of use,and finally apply the theory of time.The second issue is how to balance the interests of the creditor and the borrower’s spouse.Because of the problems of marriage and family disputes,such as the information is not easily obtained by outsiders,the borrower does not understand the debt situation,etc.Therefore,the above two are faced with different degrees of difficulty of proof.In order to better balance the interests between the creditor and the borrower’s spouse,the Supreme Court’s interpretation of husband and wife’s debt changed the distribution rule of the burden of proof in Article 24 of the interpretation of marriage law(2).As for the distribution mode of burden of proof of husband and wife’s joint debt,from the perspective of general facts and the convenience of proof,there are two main points of view at present: the spouse of the borrower and the creditor. |
