On The Applicable Conditions Of The Marital Debt In Tort Disputes

Article 1064 of the Civil Code provides in detail the applicable conditions of the rule on the joint debt of husband and wife,but the words "in common meaning" "in the name of individuals" and "in use" in the rule indicates that the rule is established primarily to solve the problem of contractual debts.marital debt originated from the civil loan disputes,and has been developing and evolving in the real dilemmas of "fake divorce and real debt evasion" and "being in debt",which fails to highlight the systematization of the debt rule of husband and wife.At the same time,based on the huge gap in the number of cases between tort disputes and loan disputes,the determination of the joint debt of husband and wife in tort disputes has always been a forgotten issue.Infringement disputes include joint infringement and one-party infringement.There is no dispute that the husband and wife should jointly bear the liability for settlement of the joint infringement.At present,there are some disputes in the practice circles about whether the rules of joint debt of husband and wife can be applied to establish the joint debt of husband and wife in one party’s infringement disputes,and thus the problems of different applicable rules and various identification standards have arisen.Article 1064 stipulates three types of joint debts between husband and wife,that is,consensual debts,debts arising from family agency rights,and debts that creditors prove to be used for the joint life,production and operation of husband and wife.The determination of joint debts between husband and wife in tort disputes should be understood and constructed based on existing legal rules.The consensual debt and the debt arising from the family agency right are based on the joint intention of the husband and wife,and the legal basis is the legal act theory.The tort is a factual act and has nothing to do with the joint intention of the husband and wife.Therefore,the agreed debt and the debt arising from the family agency cannot be applied to the tort dispute.Based on the balance of interests between the inf-ringer and the inf-ringer’s spouse,the essential characteristics of the "commonality" of the couple’s joint debt,and the practical needs of judicial practice,the infringement disputes only have the rationality of establishing the couple’s joint debt when they occur in the joint life and joint production and operation of the couple.However,the concept of husband and wife living together is vague,and it is easy to be affected by the judge’s value judgment in the specific determination.The term "common interests of the family" further indicates the purpose of the husband and wife to jointly bear the debt,and is also the basic principle of living together,producing and operating together.However,the understanding of family common interests in practice is still controversial.Family common interests refer to actual benefits or possible benefits,and whether they include life interests and spiritual interests.Based on the principle of consistency between risk and interest,and the value orientation of marriage protection,the actual property interests obtained by the spouse of the infringer should be taken as the identification criteria to exclude the possible benefits,life interests and spiritual interests.Finally,the allocation of the burden of proof is also crucial.If the allocation of the burden of proof is not clear,it will not be able to settle disputes in an orderly manner and balance the interests of the parties.According to Articles 90 and 91 of the Interpretation of the Civil Procedure Law,the infringee shall bear the burden of proof to prove that "the infringement dispute occurred in the joint life,production and operation of the husband and wife and the infringer’s spouse actually obtained property interests".At the same time,based on the objective difficulty of the infringee in adducing evidence,the judge’s authority should be used to investigate and collect evidence in the trial of the case.If relying on daily life experience or logical reasoning,it is possible to form a highly probable judgment that "one party’s infringement is caused by the common life of the husband and wife and the infringer’s spouse gains property benefits",then there is no room for applying the liability of result to the infringee to avoid obvious unfairness.