On The Nature And Settlement Of The External Tort Debt Of One Spouse

The "Civil Code" absorbs the relevant provisions of the previous judicial interpretation,and establishes the common debt recognition standard of "joint debt signing,for the daily needs of the family,for common life or common production and operation" in its article 1064 on the joint debt of the intended couple.However,on how to determine the legal nature of the husband and wife’s foreign infringement debt,the "Civil Code "is still lacking.The criteria for the determination of trial practice are different,which affects the unity of legal application and needs further interpretation and improvement.In view of this,this paper first sorts out the difficult problems in the practice of judgment,and puts forward the theory of "distinguishing debt "to judge the nature of the external tort debt of one of the spouses by comparing the legislation of various countries.Based on the legal matrimonial property system of our country-the common system of marital income,this paper distinguishes the legal structure of the settlement of the tort debt of one of the spouses by combining the external settlement and internal recovery.Specifically,in terms of the identification of the nature of the tort liability of one of the spouses,the debt is identified as a personal debt in principle.Only when the non-infringing spouses express their willingness to jointly bear the debt afterwards,or meet the conditions that the infringement is intended to benefit the family,can it be exceptionally identified as the joint debt of the husband and wife.On the issue of the settlement of the external tort debt of one of the spouses,it should be divided into external settlement and internal recovery:in terms of external settlement,the personal debt is first settled by the personal property of the spouse of the infringing party,and the insufficient is supplemented by one half of the joint property of the spouses;the joint debt is paid by the personal property of the infringing spouse and all the joint property of the husband and wife.In terms of internal recovery,if the joint property has paid off the external infringement debt of one of the spouses,the non-infringement spouse should be given the right to recover,and the exercise of the right to recover should be based on the change of the common property system.