A Study On The Determination Of The Liability Of One Of The Husband And Wife For External Tort Debt

With the rapid development of society and economy,disputes involving the debts of husband and wife emerge in an endless stream.As an important part of the rules of joint debt of husband and wife,the infringing debt of one spouse to the outside world lacks clear and applicable rules for determining its nature,nor can it be determined by invoking other legal provisions rules.Issues such as whether a spouse’s external tort debt can constitute a joint debt of the husband and wife,the assumption and repayment of the debt have not been clearly stipulated.The lack of rules directly leads to the inconvenience of practical trials.The main research object of this thesis is the determination of the nature of debts arising from a spouses external tortious acts.It adopts a research method that combines theory and practical cases,and introduces cases in which adjudication points of view are opposed in practice.Practical difficulties in relation to the debts of one spouse in relation to foreign infringement.Aiming at the particularity of a spouse’s external tort debts,we will explore suitable identification rules in order to unify judicial judgment.At present,there are viewpoints and theories such as the individual debt theory,the joint debt theory,and the distinction theory on the nature of a spouse’s external infringing debt,and there are many viewpoints that lack universal applicability.In judicial practice,the logical conflict between the establishment of joint torts and the attributes of the special community of husband and wife is not scientifically coordinated,the establishment of responsibility and the assumption of responsibility are confused,and the applicable rules of the intended debt are blindly applied,resulting in excessively scattered and diverse criteria for determining the basis for judges’ judgments.The phenomenon of different judgments in the same case is prominent.To solve the above problems,it is urgent to establish clear identification rules.The determination of the nature of a spouses external infringing debt should be based on the principle of personal debt presumption.When the act is a family tort,the infringing debt is directly identified as the joint debt of the husband and wife.When the external tort is not a family agency tort,it is first identified as the personal debt of the infringing party.Whether the basic behavior of the infringement can potentially benefit the spouse of the non-infringing party as the judging standard.As a balancing and supporting mechanism,properly coordinate the interests of the non-infringing spouse and the infringed party at the level of responsibility assumption,debt repayment and proof burden sharing,and establish the applicable rules for the assumption of responsibility based on “internal right of recourse +protection of victims’ rights and interests not affected by marital status + special property system for husband and wife”.Limit the scope of repayment of property,giving priority to repayment with personal property,and repayment with the joint property of the husband and wife when the family is tortious or the spouse has potential benefits,and the non-infringing spouse shall be jointly and severally liable within the scope of the common property;Make a distinction between internal and external,and consider them separately;in the sharing of the burden of proof,the infringed party must bear the burden of proving the basic facts,and the non-infringing spouse can defend by presenting evidence;in terms of balance of interests,affirm the non-infringing spouse’s right of internal recourse and special under the circumstances,the right to request to change the type of marital property also needs to ensure reasonable relief for the infringed party,and make it clear that the damages the infringed party can receive is not detracted from the marital status of the infringer.