The Creditor’s Right Relief Under The Civil Forcible Execution Of The Undetermined Nature Of Marital Debts

With the upgrading of the economic structure of modern society,various forms of property have emerged in economic life,and social relations are more complex than before.In order to adapt and promote economic development,the state has introduced several laws to adjust and regulate various economic relationships.The life of husband and wife does not exactly follow the logic of economic life,and it is difficult for the law to adjust and regulate the economic relationship between husband and wife or between husband and wife and third person.In economic life,it is common to see that the apparent debt is raised by one of the husband or wife,but the benefit belongs to both spouses or the property right is actually common property of one of the spouses.At this time,the responsibility and property contradict each other,however,it is difficult for the third party to pierce the veil of the relationship between husband and wife to find out their true property status,and creditors face the double risk of failure to fulfill the debt and malicious debt avoidance when trading.Due the difficulty of matching the means of property investigation in the execution procedure with the existence of property between spouses,the apparent "inability to execute" can actually be transformed into "possibility of execution",and the core of this thesis is how to make this possibility "realized" to help creditors realize their rights.In the enforcement practice,the enforcement judge,based on the effective legal document which only determines the husband or wife as the subject of debt performance,can only take control measures on the property under the name of the spouse after investigating the property status of the executee as stated in the enforcement basis within the legal period and finding that he or she does not have enough property to satisfy the claim.Therefore,in the process of execution,the creditor can only use some remedies to make the debts confirmed by the legal documents in force have retroactive effect on the spouse who should and can be held responsible.At present in Chinese judicial practice,the creditor has the right to prosecute to confirm the joint debt of the husband and wife or to to determine the scope of responsibility for property subrogation in the execution process.But because of the unsoundness of the right to defend the system few creditors will choose to sue separately,when the creditor gives up the relief path,then its rights will always be in the state of infringement,the case of justice can never be corrected,so it is necessary to discuss how to protect the nature of the debt of husband and wife is not determined under the implementation of the rights of creditors relief.At first,this article by analyzing the current situation of civil enforcement system and juridical practice,obtain the reasons why the cases with undetermined nature of debts of husband and wife cause enforcement difficulties.Secondly,talk about specific reasons for insufficient protection of creditors’ rights and remedies in the enforcement procedure through on the system and the subject two levels.Again,on the basis of the above work,we discuss how to set up procedures to enable creditors to finally obtain the realization of their rights,what obstacles they face and how to remove these obstacles.Specifically,the creditor can sue by way of a separate request for the re-establishment of the performance of the obligation to obtain the basis for the execution of the spouse of the executor or request the execution of the share of the joint property of the executor,not only to confirm the creditor has the right to sue but also through the interpretation system and eliminate the court to file the "invisible threshold" to protect Creditors to exercise the right to sue,but also consider how to reduce the burden of creditors-specific circumstances to give the enforcement court the power to add the spouse of the executor and the enforcement judge can mediate an enforcement settlement from the perspective of the specific enforcing party in the case,in order to broaden the path of creditors’ rights relief,to protect the rights of creditors.Finally,within the institutional framework of the Civil Code and the implementation of the judicial policy of simplification and streamlining of cases,we discuss how to realize the streamlining of enforcement cases and how to set up reasonable supporting procedures under the framework of substantive law.