Research On The Recognition Rules Of Daily Family Agency Debt

Article 1060 of the civil code establishes the power of daily family affairs agency for the first time.Based on this theory,the first paragraph of article 1064 stipulates that the debt generated by one husband and wife exercising the power of daily family affairs agency is directly presumed to be the joint debt of husband and wife,and establishes the daily family affairs agency as one of the criteria for recognizing the joint debt of husband and wife.However,the provisions of the civil code and relevant judicial interpretations on the daily family agency system are too general and vague,especially the lack of clear provisions on substantive and procedural matters such as the scope of daily family affairs and the distribution of the burden of proof.The academic research on the nature of daily family agency,the exercise subject of rights,the scope of daily family agency and the rules of proof also reveals obvious differences of views.Therefore,the identification of daily household agency debt has become a practical problem to be studied urgently.The above arguments only stay at the theoretical level,and a few case studies can not answer whether these disputes exist in judicial practice.Judicial practice is an important yardstick to test the legitimacy of legal rules and academic views.In view of this,this paper takes 527 judgment cases since the implementation of the daily family agency debt recognition rules as the research object for case analysis.It is found that there are some problems in judicial judgment,such as unclear application of daily family agent,confusion of identification standards of daily family scope,different judgments in similar cases and different judgments in the same case caused by unequal application of proof rules,which damage the legitimate rights and interests of some dispute parties and judicial credibility.Next,it makes a targeted analysis around the academic research and judicial practice of the identification rules of daily family agency debt,so as to strengthen the theoretical support of the identification rules of daily family agency debt.Finally,in order to unify the application of the recognition rules of daily family agency debt,the following suggestions are put forward: the exercise subject of daily family agency right should be limited to legal husband and wife;The definition of the scope of daily household agency should grasp the basic principles of "necessary purpose" and "appropriate means";In the judgment of specific cases,we should combine the specific family economic situation of the debtor and determine the standard that the path is dominated by the purpose of debt and supplemented by the amount of money;In the aspect of proof of proof,the proper application mechanism of the legal presumption rule is the high correlation between the basic facts and the presumed facts.The reasonable distribution rule of the burden of proof established from this is to strengthen the burden of proof of the debtor’s husband and wife;In order to promote the identification of the objective purpose of the husband and wife’s borrowing,it is necessary to strengthen the judge’s free evaluation of evidence in combination with the husband and wife’s life experience,and take the change of family assets and strengthen the identification of the judge’s authority as auxiliary means.