Identification Of Joint Matrimonial Debts

With the rapid development of the market economy, as important subject in socio-economic exchanges, more and more married couples engage in a variety of economic activities such as production, management, finance and consumption. As a result, debts owed by the husband or the wife to any other person become a very common phenomenon. Debts involve not only the married couple, but also third parties that have claims and liabilities against either or both the husband and wife, giving rise to matrimonial debt problems. China's current law, especially the Marriage Law, and relevant judicial interpretations have provided a legal basis for the identification and processing of joint debts. In 2004, Article 24 of Interpretations of the Supreme People's Court about Several Problems Concerning the Application of the Marriage Law of the People's Republic of China (II) about the identification of joint matrimonial debts limits the definition of joint matrimonial debts to"debts incurred by the husband and wife during their marriage."Since the implementation, it has maximized the protection of the interests of creditors and plays a positive role in maintaining transaction safety and helping the courts deal with private debt disputes in a timely manner. However, it is undeniable that there are some flaws and deficiencies in this article. In legal context, it is in conflict with some existing legal principles or legal rules such as the principle of privity of contract, agency of daily household matters and Article 41 of Marriage Law; in practice, its over-emphasis on protecting the interests of creditors brings about an imbalance of interest; it can easily lead to malicious debt or false litigation against the legitimate interests of the non-debt party; burden of proof borne by the non-liability party is obviously unreasonable and does not meet the fairness and justice principle.In order to accurately define joint matrimonial debt and separate debt, specify responsibilities for debt settlement of the husband and the wife, achieve a balance between property rights of the borrowing parties and the claims of creditors and provide more comprehensive and flexible protection to creditors, the first chapter of this paper gives a brief analysis of the current concept and legal characteristics of joint matrimonial debt in China and points out the difference between the joint debt of the husband and wife and personal debt; the second chapter analyzes China's current legislation on joint matrimonial debt; the third chapter gives a profound analysis of the defects in the generally applicable rules of matrimonial debt presumption in the trial practice and explains the existence of legal conflict and harm. The fourth chapter proposes some suggestions to improve China's legislation on this matter, including establishing the system of agency of family affairs, implementing provisions on the registration of matrimonial debts and properties, developing provisions on debt incurred during separation, to follow the principle of that"he who is affirming must prove"in the identification of joint matrimonial debts and so on to help resolve these difficult problems in this area and cope with the complex marriage and family problems.