Study On The Legal Issues Of Recognition Of Joint Debts Of Spouses

According to the rules of the Civil Code on the recognition of joint debts of husband and wife,joint debts of husband and wife may arise based on the joint intention of husband and wife,that is,"consensual joint debts".However,there are difficulties in the judicial recognition of"consensual joint debt".By examining the relevant provisions of common law and civil law countries,we can find the root of the judicial dilemma of "consensual joint debts" in China:there is no clear distinction between the internal and external levels of consensual joint debts,no awareness of the plurality of the connotation of the consent of one spouse,no interpretation of the"authorized The distinction is not made between "authorized consent" and "debt-based consent"from an interpretive perspective.As a result,the criteria for determining joint debts have become homogeneous and the consequences of joint debts have become polarized.Although the provisions of the Civil Code on matrimonial debt are not perfect,they contain some important ideas and leave enough room for future improvement of the rules.By distinguishing between the authorized type of consent and the debt type of consent,the connotation of the consent of one spouse can be clearly determined.If one spouse has made a signature confirmation or posthumous acknowledgement when the spouse raised the debt,such as the act of joint repayment afterwards,then the non-raising spouse can be considered willing to pay the debt to the creditor jointly with the spouse to the extent of his or her own personal property and the common property of the couple.If the non-borrowing spouse does not sign as the debtor or acknowledge afterwards,then it can only be considered that the non-borrowing spouse has only authorized type of consent,because he or she only authorized the spouse’s act of borrowing,which does not mean that he or she needs to pay the debt with his or her own personal property and the spouse’s common property.The effect of the authorization is to give the creditor a piece of mind.At the same time,this article also analyzes the post recognition of consensual joint debts.Post recognition cannot simply be based on post knowledge,but requires not only proof that the spouse who raised the debt had post knowledge of the debt,but also other evidence to prove that both spouses had the intention to jointly raise the debt.In the absence of express nor actual action,the possibility of silence being recognized as retroactive,such as joint repayment after the fact,cannot be completely denied.However,it should be noted that in the case of a debtor’s personal debt,where the spouse repays the debt once or several times afterwards,if the spouse has not expressly indicated that he or she will repay the debt jointly with the debtor,it cannot be considered across the board that the spouse is post retroactive to the entire debt.According to Article 1064 of the Civil Code,debts that the creditor can prove to be used for the joint production and operation of the spouses also belong to the joint debts of the spouses.Through the analysis of 102 cases,it can be found that the criteria for determining the "joint production and operation" type of joint debts as stipulated in Article 1064 of the Civil Code are unclear and need to be clarified.In practice,there is even the phenomenon of different judgments in the same case.The recognition of joint debts of operating spouses should be based on the standard of joint participation,specifically the form of joint participation includes both joint investment and the participation of one party in the operation of different forms of expression.