The Nature Of The Theory Of A Surviving Spouse Of The Debt

With the rapid development of social economy and the raising divorce rates, especially the implementation of Interpretation II of the supreme people’s court on issues of Marriage Law of People’s Republic of China, the problem of marital property disputes become more prominent. While the marital common debts which is as important part of jointly property of the spouses, shows the trend of increasingly complex, and the identification of the nature of marital common debts become more important and difficult. When refer to the division of property in divorce, the couple have to face the problem of debts assumption. Therefore, the identification of the nature of marital common debts is of great importance, because it not only related to the protection of the lawful property rights of the debtor’s spouse and the harmonious and stable marital relationship, but also matters whether the legitimate rights and interests of creditors can be achieved, thereby protecting the stability of civil trading order. As for the judicial practice, more detailed and accurate specifications are required. Based on the reality, this paper combines the advanced experience of foreign legislation with the legislation of our country, around the core of the identification of the marital common debts and personal debts of one of the spouses, analyze the different rules in identifying the personal debts of one part between wife and husband and the personal debts of one of the spouse with the third party. The paper tries to give some opinions on the identification of the marital common debts and the perfection of the related provisions, and finally gives some advise on how to improve the marital common debts system. Wish in the judicial practice, more just will be available to protect the couple’s rights and interests as well as the legitimate rights and interests of creditors.Besides the introduction and conclusion, this paper can be divided into four parts.The first part is about the introduction of the marital common debts and the debt of one of the spouses. This part mainly introduces the basic concepts, characteristics and classification of marital debt and the debt of one of the spouses, and analyzes the reasons how the issues happen in the marital common debts in divorce proceedings and the debt of one of the spouses. By comparing and analyzing different approaches of the extraterritorial country’s legislative system, the paper gives some inspiration on legislative issues of the identification of the marital debt, and provided the theoretical and legislative basis for the identification of the debt of one of the spouses. The second part is talking about the identification of the debt of one of the spouses within the couple. By reviewing the related provisions and judicial interpretations about the identification of the nature of the debt of one of the spouses, this paper summarize the scope whether the debt of one of the spouses belong to the marital common debts or personal debts obligations, and quoted the views and theoretical basis on the debt of one of the spouse for its assessment, the views set forth herein. The paper also focus on the main problem existing in judicial practice, including debts generated by supporting their parents and raising siblings; raising stepchildren; one of the spouse goes for further study or learn a skill and debt arising during the separation.The third part discuss the identification of the debt of one of the spouses incur debts to creditors. The identification rules of the identification of the debt of one of the spouses incur debts to creditors mainly shows in Article23,24Interpretation II of the supreme people’s court on issues of Marriage Law of People’s Republic of China. This part gives some comment on the said judicial interpretation provisions, and pointed out that there are a lot of problems come in to being because of the existence of related judicial interpretation.The fourth part is about the suggestions of how to improve the relevant rules. For this part, it focuses on the flaws of the identification rules used in the identification of the debt of one of the spouses within the couple, and when faced with the third party, including the procedural safeguards for the debtor’s spouse to exercise the right of defense, the clear definition of the nature of a few typical debts in judicial practice, the debts of one of the spouse is presumed to be personal debt and so on. These suggestions are important to establish a more perfect legal system of the debt of one of the spouses for our country, and also can effectively balance the interests between the marital and creditors.