Study On The Judging And Paying Off Of Matrimonial Debt

Although the marriage law and relevant judicial explanation of China have regulations regarding matrimonial debt, the provisions are limited. There are no clear and systematic rules concerning problems of matrimonial debt, for example, what’s the judging standard of a couple’s personal debt and common debt, how to determine the responsibility of paying off of personal and common debt respectively and the claim of compensation between common property and personal property. Imperfection of law has caused difficulties in the judicial practice and at the same time catches the attention and causes discussions of scholars. This paper puts forward some suggestions on these problems, hoping to offer reference to perfect China’s matrimonial debt system.There are four sections in this article.The first part discusses the basic problems related to matrimonial debt, including the definition of matrimonial debt, significance of research on the debt, research status quo on the debt in academic circle, the research methods used in this article, the structure of the article, and difficulties and deficiencies in writing. In this paper, the matrimonial debt is referred to the debt caused by husband or wife or both of them in civil and commercial dealing with a third party during their marriage. Research on matrimonial debt is not only to perfect the content of marital property system and to guide the civil trial, but to meet the growing needs of civil and commercial practice of couples.The second part is about the regulations of matrimonial debt in civil code of France, Germany and Switzerland, the three typical continental law system countries which has the same statutory tradition as China. The study on other countries’ laws is to provide reference for the legislation in China. First of all, all the three countries treat matrimonial debt as negative property and put them in the chapter regarding marital property system. Second, all the countries clear the scope of common debt and personal debt and the judging standards. Third, different nature of debt should use different property to pay off. A party enjoys the right of recourse against the other party after he or she assumes more of the common debt than he or she should have to. How to exercise the compensation right between common and personal property. In the end, all countries have supporting system such as daily housework agency, very property system. The relevant regulation concerning matrimonial debt of the three counties is worthy of reference for our country’s marriage legislation.The third part analyzes the evolution and status quo of our country’s matrimonial debt legislation and the problems existing in the legislation. The evolution part includes marriage law of 1950 and 1980 and supreme people’s court’s opinions in dealing with the problem of division of property of divorce cases in 1993. The legislative status quo refers to the "marriage law" in 2001 and the existing three judicial interpretations. Matrimonial debt related legislations in China mainly exist the following problems: the first one is that the legislative orientation of the debt is to deal with debt disputes in divorce cases, which is clearly inappropriate; Marriage law adopts decentralized legislation pattern, namely puts the content of the marital property ownership in the family relationship chapter and puts the rules of the matrimonial debt in the divorce chapter and supplements it by judicial interpretation. This legislation mode is clearly inappropriate, because on the one hand, matrimonial debt not only happens in divorce cases but also exists in the marriage relationship duration. on the other hand, Marital property includes not only the positive property, but also negative property, namely matrimonial debt, so legislation should be uniform. Second, the legislation and judicial interpretation divide matrimonial debt by different judging standards, which leads to courts in different regions and different courts in the same region reaching to different results concerning matrimonial debt. Third, there are no specific rules concerning paying off of common debt and personal debt; how to pay off debt when the couple has common and personal debt at the same time; how to realize the compensation rights when one kind of property paid off the debt owed by the other kind of property.The fourth part puts forward some suggestions for the perfection of Marriage Law of our country. The first one is to straighten the legislative orientation of the debt, linking matrimonial debts with marital property system; clearly state the paying off rules of common debt and personal debt happened in divorce cases and during the marriage. Second, we should take the analysis by synthesis theory as judging standard of the debt, namely considering “borrowing purposes, time of borrowing, whether the amount of the debt is obviously too large, the subjective mentality of the debtor and the third party "”when judging the matrimonial cases. The law should regulate the scope of common debt in general legislation, at the same time make clear what kind of debt belongs to personal debt. Third, make clear the nature of several special matrimonial debts, namely debt caused by tort, debt caused by guarantee, debt caused when separating, debt caused before marriage, debt caused for caring family. Specifically speaking, the debt of tort should distinguish the state of mind of the tortfeasor and his or her intention. If the tort is acted intentionally, the debt should be personal debt(to resist tort behavior); if the tort is acted negligently, the law should distinguish the tortfeasor’s intention: common debt if the tort is done out of the common family interest; personal debt if the tort is to achieve personal interest. Free guarantee debt cannot bring any benefit for common family interest, so it can only be the guarantee’s personal debt. The debt caused during the period of separation is commonly regarded as the borrower’s personal debt, but common debt if it’s to meet the need of a legal duty. Debt caused before marriage is the party’s personal debt. Debt caused by fulfilling the duty of supporting parents and step-children who have formed nurturing relationship with the step-parents is common debt. Debt caused for bringing up the illegitimate children is personal debt, but if the children are born before this marriage and the spouse knows the fact, then the children should be regarded as step-children. Forth, perfect the paying off and compensation rules. When handling divorce case, in the outside relationship, the couple pays off the common debt jointly. In the inside relationship, the couple shares the debt by proportion. A party enjoys recovering right if he or she paid off the debt more the he or she should have to. Each party’s personal debt should be paid off by personal property. When the debt dispute is caused in wedlock, in the outside relationship, the couple pays the common debt jointly, but one party’s recovering right’s limitation period should be suspended. A party’s personal debt should be paid by personal property first; if the personal property is insufficient, either party can file a lawsuit asking the court to separate the common property. Then the debtor can use the share of property he or she got from the common property to pay off the debt. When there are common debt and personal debt at the same time, considering different creditor’s interest, the law should take the double priority" standards, namely personal property used in personal debts, common property used in common debts; only if one kind of property is left can it be used to pay off the other kind of debt. The law should also have rules regarding compensation of different property. Fifth, perfect the related supporting system, namely daily housework agency and very property system. This section has been a focus of attention in the paper.