On The Determination Of Joint Debts Of Husband And Wife

Nowadays,with the rapid development of social economy,people’s family life style is changing with each passing day.Under the background of this era,there are more and more cases of property disputes between husband and wife.The definition of marital joint debt has always been the focus of dispute between the theoretical circle and judicial practice.For a long time,the legislation on the identification of marital joint debt in China lacks systematic and unified identification rules.In trying disputes over a couple’s debt,the courts mostly mechanically invoke article 24 of the second interpretation of the marriage law,which states that the debt was incurred during the duration of the marriage.At first,"article 24" to a certain extent to curb the phenomenon of "false divorce,true debt evasion",protect the property interests of creditors,promote the sound development of the market economy.However,on the other hand,it harms the interests of the spouse of the non-debtor,and generates considerable negative effects.For example,if the third party and the debtor make up debts to harm the interests of the spouse,it is difficult for the spouse to prove to overturn the joint debt.In order to solve the above problems,on January 18,2018 the Supreme People’s Court issued on the trials of joint debt disputes on the relevant problem of applicable law(hereinafter referred to as the article,the method of interpretation of the[2018]no.2),based on the family authority,redesign the joint debt of the new rules,and adjust the allocation of the burden of proof,trying to balance the legitimate rights and interests of creditors and the debt spouse.There is no doubt that the new judicial interpretation has its theoretical rationality and alleviates social contradictions to some extent.However,with the passage of time,the expected legal effect and social effect of the legislator have not been fully achieved,that is,the unification of the recognition standard of marital joint debt has been completely solved.From the birth of the first marriage law to the subsequent judicial interpretation of the marriage law,the current standards for determining the joint debts of husband and wife in China have been constantly enriched,mainly including the purpose of living together,the inference of the duration of the marriage relationship and the legal interpretation[2018]no.2.Judicial practice is constantly facing new challenges,which leads to the evolution of identification standards.In the past,the result of using one standard to judge different cases in isolation is that the appeal rate is always high,resulting in the dilemma of different judgments in the same case.On the contrary,the law in[2018]no.2 refers to the dialectical identification of the common debts of husband and wife by combining such factors as the mutual consent,common life and common interests,"jointly signed debts","daily needs of the family","husband and wife’s common life and common production and operation",and "burden of proof distribution".But the vitality of law lies in its operation,and the best criterion to test the effect of new judicial interpretation is judicial practice.By means of case analysis and quantitative research,taking the time of promulgation of the new judicial interpretation as the dividing line,the author searched the marital debt cases of Jiangsu and Anhui provinces on the Internet of Chinese judgment documents.According to chronological order selected the 260 trial case,more visually in the form of a chart shows the two provinces couples debt that trial:the new judicial interpretation issued after joint debt proportion that appeared a downward trend,court case no longer one-sided as common debt but considering various factors of debt.While the new judicial interpretation is frequently cited,it also exposes new problems,mainly due to the lack of clarity in the legal elements of the new judicial interpretation and the unreasonable distribution of the burden of proof.First of all,it is the stone of the mountain that can attack the jade.Aiming at the blurring of the boundary of family daily life needs,we can learn from the foreign legal system on the determination of the couple’s joint debt,and add the daily agency system in combination with the difficulties in the judicial practice in China.Secondly,the judgment criterion of joint living and joint production and operation should be clarified.The husband and wife should adhere to the principle of Shared interests and take comprehensive consideration of the marital status.In the judgment of joint production and operation,the reasons of joint debt should be considered first.Finally,in the situation of disordered distribution of burden of proof,different situations of debt should be distinguished.The burden of proof should not be fully distributed to the creditor or attributed to the non-debt spouse.The debtor should be made to bear a certain burden of proof to balance the legitimate interests of the three.