Research On Distribution Of Burden Of Proof Of Marital Joint Debt In China

The debt of husband and wife can be divided into personal debt and joint debt of husband and wife.As for the recognition rules of husband and wife debt,China’s laws regulate it through principle provisions,some exceptions,and listing laws and regulations.Looking at the legal evolution of the determination of husband and wife’s debt,we can see that the law is playing a game between protecting the interests of creditors and the interests of non debtor’s spouse,trying to find a balance.In order to achieve judicial justice.The distribution of the burden of proof is dual,which includes the objective burden of proof in the sense of result and the subjective responsibility of providing evidence.The former is set by law and can be directly applied by the judge.The latter is the process in which both parties put forward the claim,defense and then resist.The judge judges the relevance and strength of all the evidence in the case by exercising their discretion Break.When the objective facts are not clear,the burden of proof should be borne by whom.Article 41 of the marriage law of the People’s Republic of China(hereinafter referred to as the marriage law)and Article 24 of the Supreme People’s court’s interpretation on Several Issues concerning the application of the marriage law(2))(hereinafter referred to as the judicial interpretation(2)),there has always been a prominent contradiction between Article 41 of the marriage law of the People’s Republic of China(hereinafter referred to as the "marriage law")and Article 24 of the "judicial interpretation(2)" In addition,the burden of proof of "exceptional circumstances" and "not used in common life" is assigned to non borrowers.In 2018,the Supreme People’s Court issued the interpretation of the Supreme People’s Court on issues related to the application of law in the trial of cases involving marital debt disputes(hereinafter referred to as the "new interpretation")directly presumes that the single debt raised by the husband and wife within the scope of daily family affairs is directly presumed as the joint debt of husband and wife,which exempts the creditor from the burden of proof,and identifies the joint debt beyond the scope of daily family affairs The burden of proof is assigned to the creditor,and the adverse consequences of the failure of proof shall be borne by the creditor.However,there is no clear stipulation on the standard of family daily life.In addition,as an outsider who does not participate in the debt family life,how can the creditor effectively and reasonably provide evidence for "living together",and what kind of standard the burden of proof and proof should be achieved by all parties in the marital debt dispute.In practice,we should help judges to judge by guiding cases or giving instructions,supplemented by more specific standards of "living together",and only in the continuous proof and refutation of both sides can we get the real "facts",and promote the process of the whole social transaction standardization.This paper is divided into four parts.The first part is the general overview of the determination of the joint debt of husband and wife,the burden of proof and the standard of proof.The second part is to analyze the changes and defects of the distribution of burden of proof and the standard of proof in the determination of the couple’s debt.The third part is the objective theoretical analysis of the burden of proof and the standard of proof in the couple’s joint debt dispute Then it puts forward some suggestions to further improve the distribution of burden of proof and the standard of proof.