Analysis On The Cases Of Determining Marital Common Debt

With the rapid development of society,the problem of common debt between spouse is becoming more and more prominent,which refer case equity and family stability,even social stability.The article 24 of the Second Edition of Judicial Interpretation of Marriage Law stipulates that the rules of presumption of joint debt between spouse have obvious defects,which often conflict with the Marriage Law in judicial practice,causing confusion in application.In 2018,Supreme Court issued a new judicial interpretation was promulgated,which refined the criteria for determining the joint debts of spouse,and more fairly protected the legitimate rights and interests,but there are still related problems in practice.Through the retrieval and comparison of related cases,this paper selects three sample cases: Li Ya li and Cheng Jian hui loan dispute case,Zhu Guang yong and Luo Yuan qin loan dispute case,Cao Min and Chen Wei folk dispute case.In one case,the court of first instance cited the article 41 of the Marriage Law,found that the dispute debt is a personal debt,the court of second instance cited the Second Edition of Judicial Interpretation of Marriage Law found as a joint debt of spouse,the final retrial court supported the first instance judgment.In the second case,the court of first instance found that the joint debt of couple while the court of second instance based on the new judicial interpretation to amend the dispute debt is not a joint debt between spouse.In the third case,the court of third instance found that both husband and wife should be responsible for repayment,and the court of second instance upheld the original judgment.The case shows that there are three main controversial points in practice.On the criteria for determining matrimonial debts between couple,the article 41 of the Marriage Law and the Article 24 of The Second Edition of Judicial Interpretation of Marriage Law individual adopts purpose theory and time presumption theory,while the new judicial interpretation makes clear the standard of matrimonial debts and matrimonial signature.The academic circles analyzed the new judicial interpretation aim bring order out of chaos to the Article 24 of The Second Edition of Judicial Interpretation of Marriage Law individual.On the allocation of burden of proof matrimonial debts between couple,Marriage Law trend to creditor’s proof,the Second Edition of Judicial Interpretation of Marriage Law inclines to the non-borrowingspouse’s proof,and the new judicial interpretation distributes the burden of proof.On the property and commitment of the joint debts of the spouses after divorce,the article 41 of the Marriage Law and the Article 24 of The Second Edition of Judicial Interpretation of Marriage Law ruled the joint debts of spouse are equal to the joint debts,which is not clearly defined in the new judicial interpretation.There are contradictions in the current standard of joint debt determination between couple,which often leads to the ambiguity of the determination of debt,while the distribution of the burden of proof between the parties,it is still unreasonable to use the uncertain concept of daily life in the supreme court of the new judicial interpretation.The nature of the debt between husband and wife and the undertaking of legislation has not been clarified,it can easily lead to the mixing of couple’s personal and common property.At present,the relevant legal provisions should be further amended to make and eliminate the situation which does not constitute the Joint debt between spouse.The distribution of the burden of proof between the parties should be analyzed in detail to subdivide the different standards of proof by the degree of difficulty of proof,so as to better confirm the standard of Joint debt determination between spouse,distribute the burden of proof reasonably and safeguard the interests of all parties.In legislation and judicial practice,it is necessary to perfect the standard of common debt determination,distribute the burden of proof reasonably,establish the system of public registration of husband and wife property system and establish the system of daily family affairs agency between couple.In order to improve the legal provisions and institutional construction of joint debt between spouse.