Research On The Adjudication Rules Of Joint Matrimonial Debt

Article 1064 of the Civil Code takes the "consent of the husband and wife","needs of daily family life",and "cohabitation or joint production and operation" as the rules for identifying disputes over jointly-owned debts of a couple,which is actually a continuation of and integration of the content of Fa Shi [2018] No.2 at the level of the code.From the viewpoint of judicial practice,the rules for adjudicating joint debts of husband and wife have,since their introduction in 2018,on the one hand,to a certain extent reduced the judicial cases of joint debts disputes of husband and wife and achieved certain results;on the other hand,the appeal rate of joint debts disputes of husband and wife has climbed,and many joint debts of husband and wife are found to have different facts and the judicial phenomenon of different judgments in the same case is serious.Although the provisions have been incorporated into the code,the existing problems cannot be ignored.The paper is divided into four sections,in addition to an introduction and a conclusion.Part One,the problems of adjudication in disputes over joint matrimonial debts and their causes.The analysis of such cases reveals that there are serious problems in the adjudication of disputes over joint matrimonial debts: in determining whether there is "matrimonial consent",different judges make different results in determining the consent of the same objective fact;many relevant cases only rely on the amount involved to determine whether the debt falls within the scope of the family’s daily needs;the creditor has to prove that the debt was used for the couple’s common life and joint production and operation to the extent of "possible" or "true";the creditor’s ability to prove is only focused on business debts,and the path of proof is narrow.The creditor has to prove that the debt was used for the couple’s common life and joint production and operation to the extent of "possible" or "real" proof;the creditor’s ability to prove is only focused on business liabilities,and the path of proof is narrow,while the debtor,as a party to the debt,is a spouse with a very low rate of appearance in court.The rate of appearance in court is extremely low.There are three main reasons for the above problems: first,the lack of clear principles of adjudication as a guide,the judge’s free mind to play arbitrarily;second,the identification of vague standards,the lack of specific criteria for adjudication;third,ignoring the important position of the spouses to raise debts,only by the creditor and the non-debtor spouses to raise evidence are certain limitations.Part Two,the legal basis and principles of adjudication for the construction of a joint matrimonial debt regime.There are four academic views on the jurisprudential basis of the joint debt regime: the theory of community of property of husband and wife,the theory of benefit of husband and wife,the theory of daily family agency and the theory of family needs.The theory of community of property of husband and wife is contrary to the principle of autonomy of meaning in civil law;the theory of benefit of husband and wife is narrow and cannot regulate what is meant by "benefit";the theory of daily domestic agency is too partial and cannot regulate debts beyond the daily needs of the family.The family needs doctrine is a user-friendly,broad-based approach that reasonably encompasses all types of joint matrimonial debts and reveals that the essence of joint matrimonial debts is a matrimonial obligation in the form of a "family matter".On the basis of the theory of family needs,the principles of adjudication of disputes over joint debts of husband and wife are constructed to lead a unified adjudication: the principle of autonomy of intention,insisting on individual responsibility for individual acts;the principle of equality of status of husband and wife,emphasising the protection of the right to know and the right to decide of the non-lifting party of husband and wife;the principle of the sole nature of debts,avoiding the difference between internal and external standards of proof,resulting in judicial self-contradiction;the principle of good faith reliance protection,broadening the path of proof for creditors The principle of protection of bona fide creditors is also emphasized to protect creditors in good faith.Part Three,Unifying the standards for adjudication of disputes over joint matrimonial debts.The presumption of "spousal consent" should be interpreted restrictively to protect the right of consent and decision of the non-borrowing spouse;unify the rules of daily domestic agency to regulate the scope of daily family needs: the right of daily domestic agency is limited to legitimate spouses,and the scope of daily domestic agency is judged by the reasonableness of the purpose plus the appropriateness of the means;unify the requirements The standard for determining "use for the common life of the spouses,common production and business" must reach the level of proof of "actual common benefit",and the principle of "individual judgement of debts" must be upheld to avoid sweeping generalizations.Increase the protection of creditors’ debts in good faith,in order to maintain the market economic order:if the creditor proves that he or she has exercised due care and attention and believes in good faith that the debt is used for the daily life of the couple’s family or that there is a consensual agreement between the couple,then the debt in question belongs to the joint debt of the couple;the tort debt of one of the spouses is determined in accordance with the theory of family needs: if the original purpose of the act at the time of the tort debt is a family matter,then the tort debt belongs to the joint debt of the couple.Common debts.Part Four,balancing the allocation of the burden of proof in disputes over joint matrimonial debts.With the basic principle of "who claims,who proves",the status of the spouses in the debt involved and the different situations of the community of interests are re-examined,and the burden of proof of the spouses is increased: the spouses should prove that the debt belongs to the joint debt or the individual debt of the spouses according to their own claims,and the creditors or the non-debt-raising parties of the spouses constitute a joint burden of proof.The burden of proof is shared with the creditor or the non-debtor party.In a dispute over joint debts of husband and wife,the burden of proof is reasonably distributed among the three parties: the creditor as the plaintiff bears the main burden of proof that the debt is a joint debt of the husband and wife;the non-debtor party of the husband and wife bears the burden of proof that the debt is a personal debt of the husband and wife;the debtor party of the husband and wife should prove that the debt is a joint debt of the husband and wife or a personal debt of the husband and wife according to their claims with the creditor or non-debtor party of the husband and wife.