A Study On The Identification Of Common Intention In Husband And Wife Debts

In 2018,the Supreme People's Court issued the Interpretation on Issues Related to the Applicable Law in Hearing Cases Invoking Spousal Debt Disputes,which formally introduced the "common declaration of will of husband and wife" into the rule of the common debt of husband and wife,with the intention of guiding the parties to sign jointly,in order to curb a surviving spouse fictitious debt makes the spouse "liabilities" phenomenon.The interpretation is more normative than judgmental.A court heard that if one of the spouses knew and did not raise an objection,for example,the spouse was present,signed as a spouse or witness,the money was remitted to the spouse's account,and the spouse later offered to pay the money back,it could be presumed that there was an expression of mutual intent.This kind of practice also has explicit provisions in the document issued by Zhejiang Provincial Higher People's Court and Jiangsu Provincial Higher People's Court.There is a big gap between "knowing not to dissent" and "expression of intention",lacking the expression behavior required for expression of intention.However,husband and wife are close community in ethics and emotion.If the expression of common intention of husband and wife is understood as the simple addition of independent expression of intention of husband and wife,it may deviate from the particularity of identity of husband and wife.Therefore,it is necessary to make a proper understanding of the conjugal common expression of will.Article 1064 of the Civil Code contains two paragraphs,both of which use the expression "common declaration of will of husband and wife".According to the content of the expression of the common will of the husband and wife,some scholars think that it is the expression of the intention of debt,and the spouse intends to become the subject of debt in the first paragraph.It is the expression of intent of authorization in the second paragraph.The spouse intends to recognize the debt behavior of the other party and is willing to take the joint property as the liability property,which is to grant the other party the joint property management right.This understanding is based on the right of husband and wife to manage their common property as stipulated in Article 1062 of the Civil Code.When husband and wife enter into a private law relationship with others,the important thing is the management authority of the joint property.The rationality of this point of view lies in that,although the parties' intention expression is subjective,it does not mean that there is no trace to be found,but it is still objective existence.The management right of common property exists objectively in the relationship between husband and wife and plays an influence when performing a trade with others,so it can become the corresponding content of intention expression.According to the exact degree of the expression of common declaration of will of husband and wife,some scholars think that which specified in paragraph 1 is the definite expression of the common will of husband and wife.Which specified in Paragraph 2 is the presumed expression of mutual will of the husband and wife,and the analogy applies to the rule of apparent agency.In fact,this is to maintain a balance between private autonomy and relative people's trust,which has some merits,but the application of this analogy cannot be unlimited.Some scholars agree with the practice of "knowing" presumption of "expression of common will between husband and wife",because under the current rules,the burden of proof borne by the creditor is too heavy and its interests are improperly impaired,so the presumption can be made.Some scholars put forward that when the unilateral behavior is in line with the interests of the husband and wife group,it is sufficient to give the spouse the right to know in order to make the husband and wife's personality independent and the husband and wife group not contradict with each other.In fact,neither view supports the presumption of mutual consent.The former lacks the necessary argument about the expression of meaning;The latter misunderstands the occasion of the existence of the husband and wife group and it is not legitimate to belong to the husband and wife group with the "group interest".Combining with the opinions of the scholars on the expression of common declaration of will of husband and wife in the previous paper,we can further analyze whether the specific situation can be identified as the expression of common declaration of will of husband and wife.When make a transaction with others,the occasions of the husband and wife community exist only in matters directly related to the husband and wife's life together.Only then can the intention be attributed to the husband and wife group by referring to the rule of apparent agency,so as to balance the parties' autonomy of will and trust interests.The imputation method of "not objecting in the knowledge" is actually a kind of apparent agency,which is called as tolerant agency.Its legal basis lies in that the agent incorrectly informed the outside without authorization from the inside.Combined with the constituent elements of the tolerant agency,it can provide necessary standards for the presumption of "knowing without dissenting".As for the content of the established expression of the common will of the husband and wife,it is necessary to further judge whether the spouse is the subject of the debt or the spouse is willing to assume the liability of repayment with the limit of the common property.The repayment of the spouse after the event is the mutual aid behavior between husband and wife,so it is difficult to identify that the private law relationship should be borne by the spouse.When the spouse provides security,its meaning has been clear,only for the purpose of providing security,which is no different from the general debt guaranteed,does not contain the property of the joint debt of the husband and wife;If one of the spouses deals with the affairs in the name of the spouse,which is the spouse's personal affairs,it is necessary to consider the reasonable trust of the counterpart when applying the rule of apparent agency,and the standard for judging the reasonable trust of the counterpart cannot be reduced based on the existence of the identity of the couple.