| Debts incurred by the husband and wife refer to the debts which one of them or they both bear when they engaged in civil and commercial cases with the third party. According to statistics, there are about 400,000 families involved in divorce in China every year. The husband and wife have some disputes over the debts while they divide their property since they divorce. The inquisition of this kind of case affect not only the economic interests of the husband and wife but also the rights and interests of creditors; therefore, it is necessary for us to investigate and discuss the cases concerning debts incurred by the husband and wife basing on the practice of justice.I. Cognizance of the debts incurred by the husband and wifeCognizance of the debts incurred by the husband and wife mainly means to distinguish that the debts incurred by the husband and wife belongs to their common debts, individual debts or false debts, which is the precondition and necessary condition for dealing with the debts incurred by the husband and wife since only recognize is accurate, can we deal with it impartially. However, in the divorce litigation, the debts incurred by the husband and wife is difficult to confirm because firstly, the husband and wife are opposite parties, who have disputes over whether there is the common debts, how much the common debts and the cognizance of individual debt; secondly, the husband and wife have common interests as common debtors and they are opposite to creditors, who have disputes with creditors; thirdly, much of the debts incurred by the husband and wife originate the kindred and the relatives and friends of each side become two opposite groups when husband and wife divorce, so they maybe compile false situations, which are difficult to distinguish. The interferences of subjective and objective elements bring many difficulties to accurate cognizance of the debts incurred by the husband and wife. In order to realize equity and justice, avoid the fact of the interests of one side is damaged since he bear much more debts without reasons and protect the interests of creditors, we should insist on the principle of delimiting and understanding the characteristics of debts incurred by the husband and wife according to laws in the practice of justice and build the base of dealing with the debts incurred by the husband and wife on impersonal reality.In order to delimit the characteristics of the debts incurred by the husband and wife according to law, it is necessary to deeply analyze the accurate definition of debts incurred by the husband and wife in relevant laws. It is necessary to gradually do research on the regulations concerning the debts incurred by the husband and wife in Chinese marriage law and other relevant laws and know the spirit of legislation, namely, predominating different standards in laws towards debts with different characteristics and the scope of application basing on different characteristics of concrete debts for ensuring the legal backing for delimiting the characteristics of the debts incurred by the husband and wife is sufficient and delimiting the characteristics of the debts incurred by the husband and wife according to the laws.Understanding the characteristics of the debts incurred by the husband and wife according to law mainly means that understanding the characteristics of the debts incurred by the husband and wife basing on evidence or the principle of dealership of family matters within the scope regulated by law. The evidence is the base of cognizing the fact as well as the base of cognizing the characteristics of debt. Understanding according to evidence means that weighing the legal force of evidence basing on the different forms and content of debt and building the cognizance of the characteristics of debt on incomplete evidence for the fact can't be overthrew and confuted. Understanding the characteristics of the debts incurred by the husband and wife according to the dealership of family matters possesses larger scope of application since the dispute over the debt between the husband and wife always be caused by one side, so whether belongs to the scope of the dealership of family matters become the necessary conditions for confirming the characteristics of the debts incurred by the husband and wife after eliminating the possibility of false debt. Although there is no direct regulation concerning the dealership of family matters in Chinese marriage law, it is accepted indirectly by the form of judicial interpretations since in Article 17 Section 1, in the interpretations (I) of'marriage law'prescribes that: husband and wife are equal in handling the common property and they both have the right to deal with common property because of daily nee, so the dealership of family matters can be used as the base for understanding the characteristics of the debts incurred by the husband and wife.II. The manner and principle for handling the debts incurred by the husband and wifeHolding the manner and principle for handling the debts incurred by the husband and wife ensures equal rights and interests of the husband and wife and the interests of creditor, which should be applied basing on different cases.The treatment of debts in divorce should be divided into the one in a divorce proceeding and the one in a debt proceeding. The first manner possesses the advantage of handling two problems of divorce and debt, which is favorable to lighten the burden of litigation; the second manner can ensure the efficiency of hearing the divorce case when the debt case is very complicated, which accords with the judicial principle of no trial without complaint. These two manners can be chosen basing on real situation in real justice.Handling the debts incurred by the husband and wife should follow the principle of equity and legality, the principle of protecting the rights and interests of creditors and the principle of not involving the third party.Equity refers to that not to damage the interests of one side because of the unfair share of debts and also comprises that the interests of creditors aren't damaged. Legality means that the treatment of the debts incurred by the husband and wife should accord with not only the legal procedure but also the substantive law, should; meanwhile, the treatment of the debts incurred by the husband and wife should accord with relevant regulations in marriage law and shouldn't disobey regulations concerning creditor's rights and debt in other laws of China, and the conflicting cognizance and judgment should be avoided toward the same debt in a divorce proceeding and in a debt proceeding. The principle of protecting the rights and interests of creditors emphasize the accurate cognizance of creditor's rights and paying the debt in order. In a divorce proceeding, the reasons of creditor's rights subject to infringement include the installation of program, the deficient evidence and false statements, so it is necessary to do the followings: firstly, the third party are allowed to participate in litigation in the divorce case; secondly, enlarging the evidence should be emphasized; thirdly, the parties should be noted that they should prosecute again when the debts are too complicated in the divorce case for ensuring equity and efficiency. Paying the debt in order emphasizes that the husband and wife bear the related duty for common debts, namely, creditor has the right to ask the husband and wife to pay the debt and lodge a complaint no matter before divorce litigation, during divorce litigation or after divorce litigation. One side has to pay all the debt if the other died and has to pay by his property if common property isn't enough until all the debts are paid, which effectively avoids that the husband and wife avoid paying the debt by virtue of divorce and protects the creditor's rights when a family involves in divorce.The principle of not involving the third party means that the agreement on property between parties or the treatment of debts by people's courts only deals with the division of property and debt between the husband and wife but not change the relationship between the husband and wife and other creditors, that is to say its force of constraint doesn't involve the third party.III. Burden of proof of the debts incurred by the husband and wife and the duty of paying the debtWhen dealing with the debts incurred by the husband and wife, the husband and wife should bear not only the burden of proof but also the duty of paying the debt. The duty of paying the debt is divided in order to protect both their equal rights and interests and the interest of creditor, which has significant effect on the duty of paying the debt and equity of case and they affect each other; it is necessary to standardize basing on laws and ensure the procedure of case and the reality are just.The burden of proof should rest on different sides according to different real situation, which include the following forms of borrowing money and different opinions: the dispute over individual debt or common debt when one side borrow money, the dispute over the debt belongs to the other side when one side borrow money, the dispute over individual debt or common debt when they borrow money together, the dispute over the debt belongs to the other side when they borrow money together, etc; moreover, it is necessary to assign the burden of proof basing on the abilities of burden of proof of debtor and creditor avoiding assign the burden of proof by single method.As for the problem of how to divide the duty of paying the debt in debts incurred by the husband and wife, the husband and wife both bear the related duty, infinite duty and external duty for paying the common debt. The forms of paying the common debt include paying the debt together, paying the debt according to agreement and paying the debt according to sentence. The individual debt should be paid by individual, but some duty of paying the debt including internal one and external one according to the real situation of the form of the debt.IV. Discussion on the system of the debts incurred by the husband and wifeTo enrich and perfect legislation is the important section of ensuring judicial justice from the origin, and the writer puts forwards his opinions basing on his understanding and his analysis of the experience from foreign countries and China.(I)The issues concerning the limitation of legislationThe regulation concerning debts incurred by the husband and wife in marriage law pays too much attention to principle and neglects the particularity of the relationship of dent; meanwhile, the definition of common debt of the husband and wife in the regulation isn't accurate, which can't be used to lead and standardize the practice of justice since it has the following limitations:1. The definition of common debt of the husband and wife in the regulation isn't accurate, and it is defined as the debt when they live together in Article 41 in marriage law, that is to say that all debt during they don't live together aren't the common debt, which conflicts with the validity individual debt can be changed the common debt after marriage. Therefore, the regulation about that the debt during the husband and wife live together should be paid together when they divorce should modified as the one that the debts resulting from their common interests or obligation should be paid together when they divorce.2. There are no generalized regulations with concrete items concerning the common debts between the husband and wife and the scope of their individual debt, which lead to the difficulty of recognizing that some debts incurred by the husband and wife belongs to common debt or individual debt.3. The relevant laws have the tendency of unilateralism and absolute. The regulations concerning the common debt between the husband and wife in Article 24 in the second interpretation of marriage law don't accord with the real situations in practice, which enlarges the dealership of family matters; these will provide the people with ill intention with some chances of making false debt and borrowing money with ill intension, so these regulations can't meet the need of the complicated society.4. The protection of creditor isn't effective, for instance, Article 19, Section 3, in marriage law limits individual debts strictly from the aspects of protecting interests of creditor, but it doesn't regulated how to pay when one side can't pay the debt by individual property but they have common property from the aspect of paying individual debt, which is unfavorable to protecting the interests of creditor.(II)The opinions on improving the legislation concerning the debts incurred by the husband and wife1. Laws should meet the need of economic development. From the point of view of the practice of Chinese legislation concerning the debts incurred by the husband and wife, there are no distinct differences between the 41 Article in current marriage law and the relevant regulation in the marriage law in 1980, which doesn't accord with the economic development in the past more than twenty years; therefore, each local court has constituted internal regulations for reference when they handle a case basing on their need, which brings the negative results to identity and seriousness of enforcement, so it is necessary to enrich and perfect the relevant legislation according to the need of economic development.2. The scope, characteristics and paying the debt, etc of the debts incurred by the husband and wife should be regulated in detail in marriage law in order that there are laws to go by and execute the law strictly and impartially.3. The relevant issues concerning the debts incurred by the husband and wife should be regulated systematically in laws. The regulations of issues concerning the debts incurred by the husband and wife in marriage law or judicial interpretations are separated, which are unfavorable to systemic research and effective application of law.4. The unified principle should be put forwards ahead for leading and standardizing the issues concerning the debts incurred by the husband and wife. The facts of one side of the husband and wife borrow money with ill intention and false divorce for escaping debt are related to the shortage of this principle in Chinese marriage law and the shortage of this principle tends deviation in real sentence.5. The protection of the rights and interests of the third party should be strengthened in laws. The articles in laws concerning the related responsibility of common debt of the husband and wife, the internal and external responsibility of individual debt of the husband and wife, the agreement on paying the debt of debts incurred by the husband and wife and the different force inside and outside of the sentence by the court should be regulated more clearly.6. The dealership of family matters of the husband and wife should be set up in order to meet the need of the husband and wife for dealing with complicated family matters and the need of development of market economy; meanwhile, this dealership also provides legal backing to the court for dealing with the common debts of the husband and wife.7. The property compensation system should be established. The principle of the division of the debts incurred by the husband and wife isn't related with the third party maintains the equity, justice and security of exchange, but this principle tends to damage the rights and interests of one side of the husband and wife; therefore, the marriage law should prescribe that one side should pay the more debt has the right to demand the repayment according to the their agreement or judgment by the court.(III) Intensifying the ethics in legislationLegal system and morality are necessary conditions to build a harmonious society, so improving the establishment of harmonious society and intensifying the moral consciousness of people and standardizing moral behavior of people by law should emphasized in legislation. Strict enforcement of the law produces very good social result. The false debts in debts incurred by the husband and wife are seldom, which belong to typical problem of moral consciousness. In order to ensure the issues concerning debts in divorce case are managed in a fair and just way and the debts in laws are the real debts in practice, the articles concerning identifying and eliminating false debts and investigated the criminal liability of the relevant people in accordance with law should be added into laws; meanwhile, in order to eliminate the false debts, the principle of the person who borrowed the money pay the debt can be applied when it is difficult to notarize the false debt which the husband or wife borrowed the money in name of one side. The primary bases of this principle include following ones: i, it accords with the value orientation of equity and justice; ii, it accords with the spirit of legislation of dealing with the debts incurred by the husband and wife; iii, it accords with the legal demands of protecting rights and interests of creditor and each interests of the husband and wife; iv, it plays a positive roles of social direction of standardizing the civil legal behavior of people.
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