Research On Changing The Spouse Of The Additional Debtor As The Person Subject To Execution

When only the husband or wife is listed as the debtor in the effective legal document as the basis for execution,the nature of the debt is not specified,and there is no property available for execution in the debtor’s name.Whether the spouse of the additional debtor can be changed as the person to be executed during the execution procedure,so as to execute the property in the name of the spouse of the debtor.This is a difficult issue that has plagued judicial practice for a long time.Under the current legal framework,there is no clear regulation on this issue.In judicial practice,the practice of various courts is not uniform.This makes the executive agency not only face the problem of "difficulty in execution",but also the problem of "chaotic execution".In order to solve this problem,this paper intends to study the system of changing the spouse of the additional debtor as the person subject to execution,and provide a solution for how the creditor realizes the creditor’s rights when one of the spouses raises debts.In addition to the introduction and conclusion,the full text is divided into the following five chapters.The first chapter analyzes the types of husband and wife’s debts and the scope of liability property corresponding to each debt.Different from the dichotomy model of marital property types in our existing legislation,this paper divides marital debts into individual debts,joint and several debts and joint debts based on the difference between the debts arising from the debts of the majority and the debts arising from the legal property system.debt.and present their liability property limits for different types of debts.It is proposed to study the feasibility of changing the spouse of the additional debtor as the person subject to execution when the debt is joint and several in nature.The second chapter analyzes the current situation of changing the spouse of the additional debtor as the person subject to execution,and the problems existing in the judicial application of this system.At this stage,legislative provisions and judicial practice do not recognize changing the spouse of the additional debtor as the person subject to execution.The main reason for the disapproval is that changing the spouse of the additional debtor as the person subject to execution is suspected of violating the principle of separation of trial and execution,infringing on the substantive rights and procedural protection interests of the debtor’s spouse in judicial application.At the same time,the existence of difficulties in the identification of husband and wife debt also hinders the application of the system.The third chapter mainly demonstrates the legitimacy and rationality of changing the spouse of the additional debtor as the person subject to execution when the nature of the debt is presumed to be joint and several debts.Through the analysis,it can be seen that the theory of subjective scope expansion of executive power can be used as the basis of procedural law for changes and additions.The indivisibility of joint and several liability,the constancy of responsible property and the fact that husband and wife have joint debts can be used as the basis of substantive law for modification and addition.And when different value orientations conflict,they should be balanced,and the two values of transaction security and execution efficiency should be protected to some extent.The fourth chapter explores which way the creditor should choose to realize the creditor’s right in the execution procedure when one spouse borrows a debt.Firstly,the three solutions of separate prosecution,direct execution of the common property of the husband and wife,and change of the spouse of the additional debtor as the person subject to execution in the current judicial practice in China are analyzed,and the conclusion that the change and addition is more justified.Then,the relevant paths of Germany,the United States and France are investigated and used for reference.Therefore,a dual path of combining litigation and enforcement is proposed,that is,the judge combines the facts of the case to explain that the creditor lists the debtor’s spouse as a co-defendant,changes the debtor’s spouse as the person to be executed when the debt is joint and several,and sue separately when the individual debt and joint debt are.The fifth chapter mainly puts forward suggestions on how to improve the system of changing the spouse of the additional debtor as the person subject to execution.First of all,it is clear from the legislation that when the nature of the debt is joint and several,the spouse of the additional debtor can be changed to be the person to be executed.Secondly,the review procedures are refined,and the subject of review initiation,review subject,review standards,and review methods are clearly defined.At the same time,improve the relief procedures for the debtor’s spouse,so as to achieve a balance between the execution efficiency and the interests of the debtor’s spouse’s procedures.Finally,the establishment of the publicity system of marital property agreement will reduce the occurrence of disputes from the root.