Research On The Burden Of Proof In Matrimonial Joint Debt

After the promulgation of the civil code,its 1064 provisions on matrimonial joint debt basically continued the relevant provisions of the interpretation of matrimonial joint debt disputes（2018）,but the previous problems have not been solved.Through the case study this paper finds that there are still some problems in practice,such as the confusion of the proof rules of "joint debt and joint signing",the inconsistency of the proof standards of "family daily needs" and the imbalance of the distribution of proof responsibility.In the final analysis,this paper aims to solve two problems.The first is the standard of proof for the legal elements of three types of matrimonial joint debt.The second is how to distribute the subjective burden of proof of creditors,debtors and their spouses in the stage of cross examination of evidence.The two issues complement each other.The distribution of subjective burden of proof is based on standardized legal elements.What elements and facts can be recognized as matrimonial joint debt is related to whether the burden of proof can be successfully performed.If the cross examination of evidence can not reach the degree of inner conviction in the heart of the judge,we must bear the adverse consequences of the fact elements,and finally bear the consequences of losing the lawsuit in the objective responsibility stage.In view of the three types of matrimonial joint debt clearly stipulated in the civil code,it is necessary to clarify and standardize the relevant legal proof elements.Since the civil code only lists some types of marital joint debt,the burden of proof for creditors is heavy.Therefore,for the consensual joint debt of husband and wife,it should be recognized as consensual joint debt regardless of the identity of the borrower’s spouse.For the "daily family needs" type of matrimonial joint debt,the most important thing is to clarify the coverage and standards required for daily family life.The amount standard required for local daily family life can be determined according to the regional economic development level,and on this basis,the judge will make discretion according to the case.Within a certain amount,it can be presumed to be the joint debt of husband and wife.Beyond this range,the creditor needs to prove that the debt belongs to the joint debt of husband and wife.For the debt of husband and wife’s joint production and operation,it needs to be clear that there are only three elements of proof:first,the specificity of debt（debt is dedicated to production and operation）;The second is the commonality of husband and wife management;Third,operating profit sharing.If the business entity has only two husband and wife,there is no need to prove the third element.As for the distribution of the burden of proof of husband and wife’s joint debt,on the one hand,the distribution of the burden of proof should still be based on the principle of Article67 of the civil procedure law and articles 90 and 91 of the interpretation of the civil procedure law,but it needs to be detailed to the field of husband and wife’s joint debt;On the other hand,in view of the revision direction of the current civil procedure law,which pays more attention to the value of efficiency,the distribution mode of minimizing litigation cost can be determined through the distribution model of burden of proof in this paper,so as to improve the trial efficiency on the premise of considering the fair value.