On The Problems Existing In The Cognizance Of Marital Debt In My Country

The identification of marital joint debt has always been a big dispute in the theoretical circle and the judicial practice circle in our country.In the theoretical circle of our country,there are many views on the identification of marital joint debt,including the standard of "skopostheorie",the standard of "time theory" and the standard of "family affairs theory".However,in the judicial practice field,the recognition standard of marital joint debt is changing in the legislation of our country.The Marriage Law formally revised in 2001 put forward the standard of "living together" for the recognition of marital joint debt.Although the standard objectively solved the problem of the ambiguous recognition standard of marital joint debt,it could not effectively balance the rights and interests of the creditor and the spouse of the non-debtor,resulting in difficulties for the creditor to provide evidence.It is common for couples to use divorce as a means to escape debt.In order to effectively protect the legitimate rights and interests of the creditor,the Supreme People’s Court issued the Second Judicial Interpretation of the Marriage Law in 2003 to solve this problem.Article 24 of the Interpretation clearly puts forward a new standard for the recognition of the joint debt of husband and wife,that is,the time presumption standard of "the duration of the marriage relationship".The proposal of this standard objectively changes the status quo of the lack of protection for creditors,but at the same time leads to a new problem: creditors and debtors maliciously collude to fictitious debts,which makes it difficult to effectively protect the legitimate rights and interests of the spouse of the unindebted party.In order to effectively balance the legitimate rights and interests of creditors and spouses of non-debtors,the Supreme People’s Court issued the Interpretation of Spouses’ Debts in 2018 to solve this problem.This Interpretation puts forward multiple standards for the recognition of joint debts of spouses,including;Altogether debt in all sign,husband and wife live together and a variety of standards such as family affairs agent.The Civil Code issued in 2020 fully absorbs the spirit of this interpretation and establishes the same identification standard in Article 1064 of the Civil Code.From the Interpretation of Couples’ Debt issued by the Supreme People’s Court in 2018 to the 1064 articles of the Civil Code issued in 2020,although the recognition standard for the joint debt of husband and wife has been relatively clearly responded at the legislative level,the content of the 1064 articles of the Civil Code is only a repetition of the Interpretation of Couples’ Debt.It did not respond to the identification of the marital joint debt in recent years,including the distribution of the burden of proof,the refinement of the family agency system,the connection between the recognition of the marital joint debt and the settlement of the marital joint debt,and the refinement of the marital agreed property system.This paper is divided into four parts:The first part mainly introduces the research source,research purpose and research method.The second part focuses on the theoretical basis of marital common debt,defines the concept of marital common debt,clarifies the basis and method of recognition of marital common debt,and makes clear the value trade-off of recognition of marital common debt.The third part mainly analyzes the judicial status quo of the marital common debt system in China,and finds the problems existing in the marital common debt system through the data analysis of the existing trial cases,in order to provide data support for the problems existing in the identification of marital common debt in China.The fourth part mainly analyzes the existing problems in the recognition system of marital common debt in China: uneven distribution of the burden of proof,unclear scope of family agency,unclear connection between the recognition of marital common debt and the payment of marital common debt,and the agreed property system.The fifth part concludes the solution to the problem of the couple’s common debt:reasonably allocate the burden of proof,refine the legal norms of family affairs agency,construct the linkage mechanism between the recognition of the couple’s common debt and the payment of the couple’s common debt,and improve the system of the couple’s common property agreement.