Theory Of The Presumption Rule Of Couple's Joint Debts

With the rapid development of our country's economic society,trading between people has became more and more frequent,and there is no way to avoid the generation of debtor-creditor relationship between the husband or wife during the marriage and the third people.Rules for the identification of the nature of the debt varies by age.At present, we have established the presumption rule of couple's joint debts,this rule omitted the purpose and the agreement of couple's joint debts, only keep the time element as the standard.It lays emphasis on the protection of transaction security and creditor interest,but also lead to damages to legitimate interests of couples party who is not the party to the contract.This makes the judge when handling with creditor's rights debt disputes take a different point of view about this rule applies.Through the comprehensive reflection and reconstruction of the presumption rule of couple's joint debts,this paper tries to get rid of the dilemma of the current presumption rule to protect the legitimate interests of both the husband and wife and the creditor fairly.This paper is divided into four parts.The first part is a summary of the presumption rule of couple's joint debts.Through the introduction to the concept of couple's debts and establishment conditions and the analysis of the identified rules of couple's joint debt, and combining the relevant legal norms,it is thought that the presumption rule of couple's joint debts is the debt occurred by one person is taken as the spouses joint debt in principle during the duration of the marriage,unless there is evidence that couples adopt marital agreement property system and creditors know this agreement or the creditor and one person clearly stipulated the personal debt.The rule only retains the time element of the couple's joint debt.The second part is the assessment of the presumption rule of couple's joint debts.Through the legitimacy assessment, it is considered that the rules leads the excessive expansion of agent power of family affair, and still need to coordinate with the marriage law, civil law and other laws of the civil subject property rights protection provisions of the relationship.By purposiveness evaluation, it is believed that though it protects the interests of the creditors and the transaction security very well, this rule failed to attain the goal of fairness and justice,and break the benefitbalance, which will lead to more disputes of creditor's rights debt. its exclusion for conditions also does not conform to trade usage.Through technical rationality evaluation, in affirming it do solve related credits and debts disputes timely, this rule is not fair distribution of burden of proof mechanism,and is not conducive to the court to find out the case facts, and causes the judge not to perform due diligence,and leads to the referee the result unfair.The third part is about the feedback judicial practices have given to the presumption rule of couple's joint debts. Through a conclusion of relevant legal analysis and precedents, it can be seen that since many efforts have been done by courts of different levels in revising and improving the presumption rule of couple's joint debts, more and more courts when they deal with disputes concerning about credit and debts, determine if the debt occurred by one person during marriage is taken as the spouses joint debt not completely in accordance with the Section 24 of the Second Edition of Judicial Interpretation of Marriage Law. However, it also leads to the dilemma that there is no the same standard for judging disputes of this kind,that is to say, the similar cases may have different judgments. As a main reason of judicial dilemma, the Supreme Court has made some revisions and supplements to it on the basis of the current presumption rule of couple's joint debts, but it does not get rid of the disadvantages in a real sense.The fourth part is about the suggestions of improving the presumption rule of couple's joint debts. What should be done is to construct and improve the system of couple's joint debts in marriage law. Such construction and improvement have the following contents: defining the scope of couple's joint debts; stipulating the daily system of agent power of family affairs; specifying the regulations in the circumstances when spouses are in marital separation or one of them alone is in huge debt; distributing the burden of evidence of the creditor, the spouse who has not debt and the spouse who has debt in a equal way; judges should fulfill their duty to hear,exercise their initiative to analyze, and finally make impartial discretions.