Research On The Rules Of Settlement Of Joint Debt Of Spouses

With the development of market economy,economic activities such as individual economy,small and medium-sized enterprises,personal investment and financial management are increasing,and more families go out of their homes to conduct economic activities with other economic entities.The frequent economic activities also bring more debt relationships,and the problem of joint debt settlement of spouses is increasingly prominent.At the same time,marriage and family relations are becoming more and more precarious,the marriage age is getting older and older,the divorce rate is getting higher and higher,and the property system adopted by couples is getting more and more diversified,all of which put forward higher requirements for the solution of the problem of joint debt settlement of spouses.The Civil Code constructs the system of joint debt settlement,including the rules of joint debt recognition and joint debt settlement,the recognition rules are the premise of the settlement rules,and the two are one and the same.Locating the rules of liquidation in the chapter on "Divorce" would limit the scope of application of the rules of liquidation.The Civil Code may stipulate the rules of liquidation and the rules of cognizance in the chapter on "Relationship between husband and wife" as the rules regulating the property relations between husband and wife.Alternatively,the scope of application of article 1089 could be expanded through judicial interpretation to make it more in conformity with the reality of cases of settlement of joint debts of husband and wife.The rule of joint debt settlement of husband and wife is based on the principle of "joint debt repayment",and the principle of clear responsibility for settlement is for both husband and wife.The specific content of the rules of joint debt settlement should also include the nature of joint debt settlement,the scope of property and the order of settlement,and the right of recovery,which still need to be further explained according to the principle of settlement.The theory of interpretation of the rule of liquidation of joint debts of spouses in the Civil Code is based on the theory of legal act and supplemented by the theory of benefit sharing.As a prerequisite for the rules of settlement,the rules of recognition reflect the distinct theory of legal conduct and the theory of benefit sharing.The legal behavior theory requires full respect of the parties’ intention to avoid the phenomenon of "being indebted".The benefit-sharing theory embodies the principle of fairness and requires the spouses who share the benefit of debt to bear the risk of debt.The Civil Code has changed the logic of the theory of joint tenancy as a theory of interpretation.The theory of joint tenancy treats the husband and wife as one and ignores the individual intention of the couple,and it is not in line with the spirit of civil law to set up the responsibility of the non-debtor to settle the debt without his or her knowledge.Taking the legal act theory as the basis theory,it conforms to the principle of meaning autonomy and reflects the development trend of social concept of respecting individual personality of husband and wife,which is a rational choice in the interpretation theory of the rules of joint debt settlement of husband and wife,avoiding the phenomenon of arbitrary borrowing and lending,"being indebted" and endangering the stability of marriage and family under the theory of joint tenancy.The theory attaches great importance to the intention of the parties,fully protects the legitimate rights and interests of the parties,and can explain the rule of joint debt settlement of husband and wife with a consistent logic and connect with other related systems.The interpretation of the rules of joint debt settlement cannot only rely on the legal act theory,and the rules of settlement should be consistent with the theory of benefit sharing when the debt is used for the joint life and joint production and operation of husband and wife.It should be clear that under the legal act theory,the "interest" is not property interest but debt interest.Debts incurred by a party in tort can also be included in the scope of the rule of settlement of joint debts based on the theory of benefit sharing.The nature of liability for the settlement of joint debts of husband and wife is not clearly defined in the "Marriage and Family Part",and it is necessary to interpret the nature of liability based on the principle of "joint repayment".According to the civil liability provisions of the Civil Code,there are generally three ways to interpret the nature of liability: joint and several liability,joint and several liability,and joint liability.Joint and several liability is the only nature of liability that has been explicitly recognized by our laws and regulations.The Interpretation of Marriage Law(II)stipulates that the nature of liability for the settlement of joint debts of husband and wife is joint and several,but it has not been unified in the academic circles and judicial practice.The main theoretical dilemma lies in China’s adherence to the principle that joint and several liability shall not be presumed.In the background that the spouses have not agreed and the law does not stipulate that the liability for the settlement of joint debts is joint and several,whether the nature of the liability for the settlement can be considered as joint and several.There is already a presumption of joint and several liability in China,and according to the theory of interpretation of the rule of joint debt settlement of husband and wife and the balance of interests of husband and wife and creditors,the rule of joint debt settlement of husband and wife can be applied to joint and several liability.However,due to the differences in the rules for the settlement of joint debts of husband and wife,the joint and several liability needs to be differentiated in terms of specific settlement rules,and cannot be unlimited joint and several liability in all cases,and there should be exceptions to joint and several liability when necessary.The conditions for the existence of joint and several liability exceptions should be in accordance with the lack of common intention of the parties in the settlement of joint debts,which may constitute a joint and several liability exception when the couple does not have the intention of joint settlement and the debt is formed based on the theory of sharing of interests.The path of joint and several liability is an inevitable choice for the presumption of the principle of joint and several liability under the dichotomy of civil liability of the Civil Code,and is one of the paths that must be considered for the nature of the liability for the settlement of joint debts of husband and wife.However,due to the existence of spousal status relationship and the indistinguishable nature of spousal property,there are great difficulties in the realization of joint liability.The path of joint liability becomes one of the options because of the naming of the joint debt of husband and wife.The responsibility of debt settlement often corresponds to the nature of debt,and the Civil Code names the debt as joint debt,and based on the relevance of debt and liability in China,joint liability also becomes one of the paths.However,the connotation of joint liability in civil law is different from the connotation of joint debt settlement liability of husband and wife,and there is no relevant provision on joint liability in China,so it is not appropriate to introduce a new type of civil liability hastily.The scope of the property liable for the settlement of joint debts differs depending on the type of joint debts and the nature of the liability of the spouses.Based on the theory of legal act and the theory of benefit sharing,the property of liability for debt incurred by common intention should include the common property of husband and wife and the personal property of both spouses;the debt incurred for the daily needs of the family belongs to the presumed debt of common intention of husband and wife,and its property of liability should also include the common property of husband and wife and the personal property of both spouses;the debt is used for the common life of husband and wife,common production and operation The scope should include the personal property of the debtor and the common property of the spouses.Personal debts beyond the family’s daily needs are presumed to be personal debts,and the scope of the property liable for settlement shall be the personal property of the debtor and the personal share of the debtor in the common property of the spouses.The order of liquidation of joint debts of husband and wife and the right of internal recovery.The order of settlement and the right of internal recovery is the effect of the settlement of liability,and cannot be backward to the nature of the settlement of liability,and the priority settlement of the common property of husband and wife does not affect the establishment of joint and several liability.According to the principle of "common debt common repayment",the common property of husband and wife should be used to settle the common debt of husband and wife first.The priority settlement of common property is not the principle of binding creditors,but the priority settlement of common property between husband and wife.Therefore,the priority settlement of the common property of husband and wife does not mean that the creditor can only request the settlement of both husband and wife together,but when the creditor requests the settlement of husband and wife,the husband and wife should first use the common property of husband and wife to settle the debt.Since there is the problem of separation of the real and the nominal property of the spouses,the debts should be settled according to the formal attribution of the common property of the spouses in the external settlement involving the creditors,and the debts should be allocated between the spouses according to the substantive attribution of the common property of the spouses in the internal distribution of the liability for settlement.In these cases,the common property of husband and wife is divided and attributed to one of the spouses as personal property,and the change of the nature of the property does not affect the property as the property of liability for settlement.Specifically,in terms of the order of the property for the settlement of debts incurred by the common intention,for the creditors,the common property of the spouses and the personal property of both spouses are settled in no particular order;within the spouses,the common property is given priority for settlement.In the order of debt settlement for the family’s daily needs,for the creditors,the common property and the personal property of both spouses shall be paid in no particular order;within the couple,the common property shall be paid in priority.Debt for the common life of the husband and wife,common production and operation of the settlement of liability property order,for creditors,the debtor’s personal property and the joint settlement of the husband and wife in no particular order;within the husband and wife,the common property priority settlement.The personal debt beyond the family’s daily needs is presumed to be personal debt,and the order of responsibility for its settlement should be settled first by the personal property of the debtor,and then by the personal share of the debtor in the common property of the couple.