Reflections On The Identification Of Common Debt And The Perfection Of Legislation

Spouse’s joint debt aims to balance two relationship between protecting the safety of civil transaction and the assuring the equality of martial property system. In one aspect, it shall prevent spouse from conspiring to evade debts by asset transfer through fake divorce arrangement and harm the interest’s of the creditors with good faith; on the other aspect, it shall assure the equality of husband and wife in martial property system. How to keep a best balance is an issue worthwhile to be studied and researched.From the current judicial practice, there is ample room to doubt the legitimacy of existing regulations in relation to spouse’s joint debt regarding affirming standard, the principal of presumption and the allocation of burden of proof. The defects in the current system lead to some illegitimate and inequitable judgments. Especially, there is an outstanding issue exiting in the current judicial practice, that is the fake debt and false litigation projected by the parties in the divorce dispute in the deliberate purpose of occupying the legal property of the corresponding parties. It is of great importance to stipulate more improving and mature regulations of spouse’s joint debt, which has realistic significance as well. The present study has put forward to some suggestions to strengthen the existing system on the basis of studying others codes and regulations of the overseas countries and established on China’s current practical surrounding.