Thesis On Spousal Common Liability In PRC

Nowadays, the husband and wife play their role in China’s market economy and get involved in the social economic activities as a whole family or separate person. Not only benefits but also inevitable obligations come when the spousal deal with any economic affairs; the obligations may belong to one or both of the spousal and appear in various forms. The spousal common obligation is an important part of the spousal property system in our country. However, the marital and family law of our country doesn’t define the spousal property system clearly, let alone the spousal common obligation; the scarce definition comes from the provision in divorce property and seems not so clear. Meanwhile, there are many disputes about the concept, scope and standard of the spousal common obligation in the theory and the judicial practice.The concept, scope and standard of the spousal common obligation are interrelated, the concept is helpful to determine the scope, the scope is beneficial to the establishment of the standard, and the standard assists to define the concept. To understand the spousal common obligations, we should identify the concept, scope and standard. At present, our country defines the spousal common obligation through the common life of the spousal, and no other provisions on the life beyond the common ones; therefore, the identification of common obligations in practice is diversified. The "marriage law interpretation(two)" determine the presumption of spousal common obligations to curb the phenomenon that to escape the obligations through divorce; but also help one of the spousal to nibble the other’s property rights through false obligation.In our country, the problem of the recognition of spousal common obligations has existed for a long time; property transfer in order to evade the obligation, and conspiracy to construct the false obligation with the third party has been a difficult problem in the judicial practice. In the judicial practice, along with the accumulation and research of a large number of cases, continues to develop and improve the standard, but no clear legal provisions, case guidance as well as judgments standard bring confusion to the trial work around the courts. The difficulty in the research of recognition of the spousal common obligations is how to balance the interests of the third-part creditor and the non-obligation part of the spousal, how to effectively identify the real spousal common obligations and false common obligations, and what’s more, to develop a standard to effectively identify the spousal common obligations in the complex reality as far as possible.The purpose of this paper is to put forward useful suggestions on how to improve the system of spousal common spousal obligations through the interpretation of existing provisions, the analysis on the law of obligations in the relevant rights, discrimination on mature marital obligation system of other countries(regions); protect the interests of the third-part creditor and the non-obligation part of the spousal as well in a maximum extent, to reduce the social contradiction and the cost of justice, to ensure the legitimate rights and interests of all parties, resolving the disputes.This paper firstly analyzes the basic theory of the common obligation system of our country, define the spousal common obligations as the ones come from daily economic, the business activities of the one or both of the spousal in the duration of the marriage to maintain family life; or the obligations, even though emerge before the marriage, play a role in the martial life; or the obligations derive from the common properties and the ones agreed by the spousal. And the paper described the three characteristics of the spousal common obligations, first, the basis of its formation is a specific relationship between husband and wife; second, the cause of its production is diverse; third, it is a special kind of unlimited joint debt.This paper lists the legal sources of spousal common obligations and makes the appropriate interpretation to clarify the existing legal norms. After that, the paper compare and analysis the spousal common obligations against other kinds of obligations to clarify the scope; get a better grasp the feature of that obligations. The spousal common obligations are joint-debts, in practice, when facing a spousal common obligations’ problem that no provision has been drafted for how to deal with, the provisions drafted for the most-people debt could be applied, especially the ones for the joint-debt.Next, the paper introduced the matrimonial property system, compared to those systems in other civil law countries(regions). Once flawed, the matrimonial property system will result in a defected spousal common obligation system, which is part of the former one. That’s why after that, the paper also compare the domestic spousal common obligations system with the ones in other civil law countries(regions). In these civil law countries, such as France, Germany, a completed law system prevails, let alone the spousal common system. The paper reference three concepts of the system in these countries: legislation philosophy, legislation art and details.Then this paper discuss the necessity of correctly identified the spousal common obligations. The correct identification regulation could distinguish the personal and common obligations, make the way to pay off the debts and the applicable law provisions clear, protect the interests of bona fide third-part creditors, reduce the trading risks come from information asymmetry that the creditor likely to undertake, safeguard the rights of either of the spousal, and achieve the substantial justice. In our country, “living together”, a purpose standard, is the recognition standard on spousal common obligations so that the common obligations should not be limited to the ones after the marriage, however, all the obligations occurred during the marriage are defined as the common obligations due to a “timing standard”, which apparently is a paradox. The provisions to define common obligations are scattered, abstract and conflicting. Meanwhile, the allocation on the burden of proof is biased. Legislators considered that the privacy of marriage may lead to the difficulty in raising proof for the creditor, so that the burden of proof is allocated on the one who advocate the obligations are not common ones, and did not realized that vice versa, to get the evidence of others’ transaction is also very difficult.At last, the paper propose several suggestions on the identification of spousal common obligations:(1) improve the law system for common debts;(2) improve the marital property system;(3) establish the property publicity system;(4) make the family proxy system clear;(5) allocate the burden of proof properly;(6) allows the creditor to participate in divorce proceedings as an independent third party claimants;(7) give the judge discretion.