The Recognition Of The Tort Debt Of The Couple In The Perspective Of Civil Code

Currently,the Civil Code of the People’s Republic of China(hereinafter referred to as the "Civil Code")has been in force and has been in effect for nearly two years.Article 1064 of the Civil Code provides for the system of marital joint debt,which follows the provisions of the 2018 Interpretation of the Supreme People’s Court on Issues Related to the Application of Law in the Trial of Cases Involving Couple Debt Disputes,and adopts the "meaning theory" and "use theory" parallel rules for the determination of marital joint debt.However,Article 1064 can only be applied to debts that are determined by the spouses,and the rules for determining the tort debts of one spouse are still a legislative blank in China’s current law.With the increasing number of cases,there are conflicts in the judgment results of courts in various regions in handling cases of external infringement by one spouse,and there is an urgent need for unified legislative norms to be adjusted.Timely formulation of scientific rules on marital property and debt,and timely standardization of judicial adjudication behaviors are conducive to maintaining the unity of judgments,maintaining family stability and harmony.This article has collected 196 cases related to the tort debts of one spouse since the entry into force of the Civil Code.Through investigating and sorting out the applicable legal basis,applicable reasons,and judgment results,it is found that there are problems in the judgments of various courts in such cases: first,the judgments are not uniform in the same type of motor vehicle traffic accident infringement cases,and second,the judgment factors are not uniform,including the time when the tort debts were incurred,whether the infringement is related to family life Whether it benefits the couple’s family,etc.At the same time,many amendments to the legislation have focused on discretionary debt,but the status of creditors and debtors under discretionary debt and statutory debt is significantly different,so the existing laws do not have room for the application of debt infringed by one spouse.The absence of legislation has caused opposition in academic theory.There are three major viewpoints in academic circles,namely,"personal debt theory","common debt theory",and "distinction theory",but each has its advantages and disadvantages.After analysis,this article responds to this issue from both interpretative and legislative perspectives.First,from an interpretative perspective,the provisions of Article 1064 of the Civil Code of China,namely,"joint signature by both spouses","subsequent ratification by one spouse",and "for the needs of daily life of the family",can only be applied to intentional debts,and can be used to expand the skopos theory of "for the common life of spouses." By drawing on the "dual standard" of American legislation,Let the extension of the law extend to the tort debts of one spouse.Secondly,from the perspective of legislative theory,it is clear that the legislative rules for tort debts of one spouse are "recognized as personal debts in principle",in order to fully safeguard the legitimate interests of the non infringing spouse,and to link up with the Civil Code;At the same time,based on the humanistic care for the weak,the situation of "recognized as joint debt under exceptional circumstances" is established.To balance the interests between the couple and the third party,and effectively regulate the legal issues of infringement by one spouse.