Research On The Joint Debt Of Husband And Wife In Private Lending Case

It focuses on the problem of joint debt between husband and wife in private lending cases.The promulgation and implementation of the Marriage and Family section of the Civil Code has guiding significance for the study of the joint debt of husband and wife.The re-determination of the identification standard changes the disadvantages of the original time theory of the marriage law,solves the original problem of the difficult identification of the joint debt of the husband and wife,is conducive to adapt to the more complex reality,but also has a positive significance for debt recovery and protection of the interests of the borrower.However,this article is too general,and the corresponding judicial interpretation provisions are too few,which cannot cover most of the reality.There are still problems in the identification standard and the distribution of the burden of proof.In particular,it omitted the joint debts of couples under special circumstances,especially the identification of joint debts of couples under the cooling-off period of separation and divorce.It consists of three parts,three cases as the starting point,comparative analysis,summed up the three focal points of the dispute,after analyzing the focal points of the dispute,put forward the corresponding judicial suggestions.First of all,three cases in judicial practice are discussed,and three focal points can be summarized: first,how to identify the joint debt of husband and wife in private lending cases in judicial judgment;Second,how to protect the legitimate rights and interests of the non-debtor party and protect the property safety of the creditor in the case of joint debt between husband and wife under special circumstances.Thirdly,whether the existing burden of proof distribution is reasonable.Secondly,after a detailed discussion of the three focal points of the dispute,the causes of the dispute are analyzed.First,the definition criteria of marital debt can be divided into three categories according to Article 1064 of the Civil Code: "daily needs of the family","theory of joint production and management","marital agreement".Second,it puts forward the premise of identifying joint debt of husband and wife under special circumstances.It is to compare and divide common property and personal property of husband and wife during divorce cooling-off period and separation period through Article 1063 of the Civil Code,and then clarify the nature of personal debt during divorce cooling-off period and separation period.Thirdly,by sorting out the existing legal provisions,it is concluded that there are two types of evidence: evidence provided by creditors and evidence provided by debtors and their spouses.Finally,from the perspective of judicial practice,the corresponding measures are put forward for the summarized dispute focus.First,the definition of the joint debt of husband and wife is detailed.Second,the separation,divorce cooling-off period,the duration of non-marital relationship between husband and wife debt identification.Then enumerate the distribution of burden of proof by creditor proof,debtor proof and comprehensive proof.Third,put forward suggestions on the perfection of the couple’s joint debt,and give creditors the right to revoke to protect their legitimate interests.