The Marital Joint Debt Is Determined To Balance The Interests Of The Non-debtor Spouse And Creditor

According to Article 41 of original Marriage Law:the legal ground for the joint debts of spouses is whether the debts are used by the husband and wife in their communal life.This provision is based on the protection of the interests of the non-indebted spouse.However,due to the privacy of familial life,the creditor’s interests cannot be effectively protected on account of the difficulty in proving the debts to be used for the communal life of spouses.In this case,the creditor’s interests are frequently infringed by "false divorce" covering the true intention of evading debts.Under such circumstances,the Supreme Court of PRC has paid great attention to the relevant issues and promulgated the Judicial Interpretation II of the Marriage Law.Article 24 of the interpretation stipulates that the main basis for determining the joint debts of spouses is whether the debts are incurred by the husband and wife during their marriage.This provision has been prevalently and mechanically applied in judicial practice due to the simplicity of the identification criteria.However,though it effectively solves the creditor’s difficulty in producing evidence,it causes the non-indebted spouse to bear huge debts without receiving the deserved interests,and also leads to situations where the debtor colludes with the creditor to damage the interests of the non-indebted spouse by fabricating debts.Under the heated discussion of article 24 of the Judicial Interpretation II of the Marriage Law,some scholars have advocated that this provision should be abolished.On January 18,2018,the Supreme Court of PRC has issued the Judicial Interpretation on Disputes of Joint Debts of Spouses,which restates the principle of determining the joint debts of spouses in China as the co-application of "joint signature,joint debts",use theory and presumption theory.This principle effectively balances the onus probandi of the creditor and the non-indebted spouse.Meanwhile,the judicial practice in determining the joint debts of spouses has gradually been cautious,and the interests of the creditor and the non-indebted spouse have been effectively balanced.However,disputes and problems have continued to emerge during the judicial practice.On the one hand,the concepts of "family daily needs","communal life of spouses" and "joint production and management" are vague,which results in the lack of concrete basis for judgment in judicial practice.On the other hand,instead of assigning part of the onus probandi to the debtor,the current provision still allocates the onus probandi to the creditor and the non-indebted spouse,therefore resulting in the difficulty of producing evidence for both the creditor and the non-indebted spouse,which seriously affects the judicial efficiency.Based on the current judicial practice and my own personal practical experience,I believe,under the latest rules for determining the joint debts of spouses,the current provision could be improved from the following aspects in order to balance the interests between the creditor and the non-indebted spouse.First,in order to avoid ambiguity,it is necessary to clarify the concepts of "family daily needs","communal life of spouses" and "joint production and management".Furthermore,the onus probandi among debtor,non-indebted spouse and creditor should be allocated reasonably,and the court should proactively investigate and collect relevant evidence whenever necessary.Finally,the court shall conduct a comprehensive investigation and be cautious in determining the joint debts of spouses.