The Identification And Settlement System Of The Debt Of Joint Operation Of Husband And Wife

The joint debt of husband and wife is one of the most important legal issues in China’s marriage and family system.The joint operation debt of husband and wife is worth our discussion and research.Paragraph 2 of Article 1064 of the Civil Code of the People’s Republic of China clearly stipulates that the debts incurred by one spouse in his or her personal name in excess of the daily needs of the family during the marriage relationship are not joint debts of the husband and wife;However,unless the creditor can prove that the debt is used for joint production and operation.This provision clearly puts forward the debt of joint operation of husband and wife,but looking at the existing legal provisions in China,there are few provisions on the debt of joint operation of husband and wife,and there are no clear provisions on its identification,proof and settlement,which leads to the insecurity of market transactions and the imbalance of interests of all parties.Therefore,this paper selects the debt of joint operation of husband and wife as the research object,analyzes the common problems in its identification,proof,settlement and other aspects,and tries to put forward suggestions on establishing the identification and settlement system of the debt ofjoint operation of husband and wife.In the research of marital debt in China,experts and scholars mostly focus on the research of marital joint debt,but pay less attention to the debt of marital joint operation.From the perspective of ensuring the safety of market transactions,balancing the legitimate rights and interests of all parties,and maintaining the order of marriage and family,this paper combs the legislative and judicial status quo of the debt of joint operation of husband and wife,analyzes typical cases,and finds many common problems.First of all,the application of identification standards is inconsistent,leading to confusion in judicial practice,and the phenomenon of"different judgments in the same case" occurs from time to time;Secondly,the distribution of debt burden is unreasonable,and all the burden of proof is distributed to creditors,which leads to excessive burden of proof on creditors and reduced efficiency of proof;Finally,the provisions of the liquidation rules are not perfect,and there are no clear provisions on the nature of debt,the scope of liability property and the recovery rules,which lead to difficulties in implementation and will damage the property rights and interests of innocent parties.Looking beyond the region,the United States,France,Switzerland,Portugal,Germany and other countries have more perfect regulations on marital debts,which stipulate that the recognition standard of marital debts is "joint participation",define the scope of property to pay off debt liability,and formulate a property recovery system between couples.The extraterritorial provisions on the joint debt of husband and wife show the characteristics of being concrete and operable,which is of great significance to our country.Therefore,we can further improve the recognition and settlement system of the debt ofjoint operation of husband and wife in our country on the basis of drawing on relevant experience abroad and in combination with our national conditions and relevant legal systems.In terms of identification criteria,define the concept of husband and wife’s jointly operated debt,distinguish it from other husband and wife’s jointly operated debt,limit the identification criteria to "joint participation" as the primary one,assist with "shared income",and specifically identify husband and wife’s jointly operated debt in combination with different organizational forms.In terms of the distribution of the burden of proof,the burden of proof of creditors,debtors and spouses of non debtors should be reasonably distributed,the standard of proof should be clearly defined,and the function of court judges to review should be played when necessary to improve the efficiency of proof and protect the interests of all parties.In terms of liquidation rules,it is clear that the scope of liquidation liability property is the joint property of husband and wife and the personal property of the debtor,and the liquidation order is specified specifically;When the spouse of the non debtor exceeds the scope of liability,he or she should enjoy the right of recourse,which is usually exercised at the end of the marital legal property system.