The Determination And Payment Of The Joint Marital Debt

With the rapid development of economy,the disputes caused by the external debt of husband and wife are increasingly complex and changeable.How to determine and pay off joint marital debt has always been the focus and sticking point of controversy in academia and practice.In China,the existing provisions of law have established the basic rules of debt determination,stipulated three specific debt types,but it is still necessary to further clarify the meaning of the law terms from the interpretative perspective.As for the payment of debt,our country still only provides a principle rule of “joint paying”,therefore it is still needed to define the specific liability bearing rule from the perspective of fairness.This paper is divided into five chapters: The first chapter makes an overview of legislation development,existing status,value and function of joint marital debt of our country.The second chapter discusses theoretical disputes of the determination rules,specific debt types and excluding rules of the joint marital debt.The third chapter discusses payment on the nature of liability,liability property and the paying order of joint marital debt.On the basis of the first three chapters,the fourth chapter uses the method of empirical research to investigate the problems reflected in the judicial status quo of the determination and payment of joint marital debt,and discovers that the differences in understanding and judging criteria of the key concepts in the determination rules lead to different judgments in the same case,and the liability and the way to bear it are not clear due to the unclear legislation of debt payment.Aiming at the problems,the fifth chapter puts forward the solutions.On the debt determination,firstly,the meaning of “common declaration of will” should be accurately interpreted.The co-signing of co-debt should be prudently determined,and paying off debt,silence of knowing the debt without objection or providing a security for the debt shall not be considered as the “common declaration of will”.Secondly,the“needs of the family’s daily life” shall be determined by the amount standard,which can refer to three times as much as the last year’s per capita consumption expenditure of local residents,except where the daily consumption level of the particular family is higher than the average local level.The standard of usage can be used as a sufficient rather than a necessary condition to determine the daily family needs,unless incurring the debt infringes on the spouse’s right to make decision for major matters such as house purchase.Multiple debt in the same direction under the amount standard can be presumed within the scope of daily family needs.Thirdly,the situation in which the non-debtor party does not participate in producing and operating together but shares benefits shall not be interpreted as joint production and operation of husband and wife.The creditor shall prove that the debt is highly probable but not likely to be used for the joint needs of life or production or operation.On the debt payment: The debts based on the common will and the needs of family’s daily life should be considered joint and several liability,and liability property includes all the property of both husband and wife and there is no order of payment.The debts used to meet the couple’s joint needs of life or production or operation shall be considered “limited joint liability”,and liability property includes the husband and wife’s joint property,the borrower’s personal property and non-debtor party’s personal property benefited by the debt,and the joint property shall be given the priority for payment.