On Spousal Common Obligation

The Marriage Law and its interpretation enacted by the Supreme Court provide for therules of spousal common obligation. In the law, the constitution of spousal commonobligation is unified on the common life, but its effect is not clear. In its interpretation,the constitution of spousal common obligation is not unified according to the status ofmarriage. Prior to the marriage, the constitution of spousal common obligation isbased on the common life; in the term of the marriage, the constitution of spousalcommon obligation is predicated on the application of the community of property;meanwhile, its effects is unified as joint obligation, as is different from the MarriageLaw.Many researches conducted by Chinese marriage law scholars on spousal commonobligation merely follow the provisions stipulated by the law and its interpretationindiscriminately, giving little consideration to the underlying legal theories. Suchresearches often neglect the differences among such concepts as spousal commonobligation, common obligation and joint obligation, and thus lead to confusion, asthese are distinctive terms according to the theories of Property Law and ObligationLaw. The purpose of this paper is to clear the confusion by distinguishing theseconcepts.Chapter one talks about the constitution and effects of spousal common obligation according to the Supreme Court Interpretation on Marriage law promulgated on Dec.25, 2003. It goes on to discuss the relative articles in the Marriage Law of 2001 in thesame manner.This chapter forms a basis for the further discussion in the rest part.Chapter two points out the differences among spousal common obligation andcommon obligation and joint obligation in effects based on the theories of Civil Law.The effects of spousal common obligation in the Marriage Law include some aspectsof the concept of common obligation. But they are two different ideas. Theinterpretation of the Marriage Law sees spousal common obligation as joint obligation.This, however, conflicts with the theory of common property, and is also against thetrend of the development of the law. And under the effects of joint obligation, theconstitution of spousal common obligation stipulated by the interpretation is alsoarguable and should be modified.The last part of the paper introduces a new concept of spousal common obligationwith its constitution being based thoroughly on the common life and its new effects.That is, it should be firstly satisfied by common property owned by the spouses incommon, then from separate properties as joint obligation upon unsatisfying fromcommon property. When being satisfied from common property, the rules of commonobligation should be followed; and when being satisfied from separate properties asjoint obligation, the rules of joint obligation should be followed.