Cognizance And Redemption Of The Marital Debt

Under the condition of market economy,husband and wife as an important economic subject.Debt problems triggered by both sides or each party of husband and wife is increasingly complex.These problems not only affect the balance of interests between husband and wife,also is a matter of the legitimate rights and interests of the third person.Solution of these problems has important significance for maintaining both the transaction security and social harmony and stability.So,correct reasonably identified joint debt problems is really necessary.Throughout the current law of our country,identify to joint debt mainly embodies in the "marriage law of People's Republic of China "(hereinafter referred to as "marriage law")article 41 and" the supreme people's court on some issues of'the marriage law of the People's Republic of China 'apply explanation(2)"(hereinafter referred to as "the marriage law judicial interpretation(2)"of article 24.After "Marriage law" article 41 was passed,coastal economic developed area in China,many couples transfer the property to one of the parties to evade debts through false divorce.Aimed at the situation,"The marriage law judicial interpretation(2)"of article 24 was passed,the phenomenon of both sides of husband and wife malicious against creditors was contained,but the explanation has virtually expanded the scope of the joint debt,also appeared many couples a party with the third person malicious debt damage the lawful rights and interests of the other party.The two main deficiency is that way didn't find the interests of the creditor and the debtor spouse balance,Which did not form a complete set of rules that when invoking the law,there is a conflict of identifying on the face of it.To solve above problems,this paper argues that,in the joint debt should not be used when "one size fits all" approach,and should distinguish between different situations,different legal relations to joint debt,under the internal relations of husband and wife should apply to the "marriage law" article 41,under the external legal relations,should apply to the "marriage law judicial interpretation(2)"of article 24 of the recognition rules,both the couple and the interests of the creditors,particular case is particular analysis.This article adopts the method of empirical analysis,comparative analysis and case investigation method and other methods,from the analysis of the joint debt of the lack of legislation and supporting system,with the debt and the debt of infringement as the research focus of the contract,according to the obligee against objects,the legal relationship of different specific tell whether decided to joint debt and supporting system of perfect Suggestions are put forward.In addition to the introduction,this paper consists of six parts:the first part introduces the many scholars defined on the basis of the joint debt of the cognition,summarize and extract the connotation and characteristics of joint debt.In the second part expounds that the theoretical basis of joint debt and the value target,explained from two aspects of theoretical basis and value target,discussed below is just what this part expounds the theoretical basis of guidance,in addition,solving the problem of the cognizance of joint debt should be around the maintenance transaction security,balance,and maintain the interests of all parties to maintain the value goal of family relations.The third part introduced through commenting on regulation of the couple's debt that rules,for nearly three years of different court for similar case,analyzes the designing of joint debt that exists problem,namely the joint debt that the lack of legislation and the lack of supporting system.In the third part of the article that the deficiency of the legislation on joint debt,the author in the fourth section of the article refer to the United States,Germany and other countries about how joint debt of legislation and practice experience,put forward in the fifth part the author integrated and different circumstances of joint debt should decide how to rule,which is the core and innovation of this article.In my opinion,the standard of joint debt cannot treat as the same,should be under the general standards to distinguish the specific situation,the standard of identifying a generalization of the couple's debt must satisfy at least one of the following three points:the first,the couple has a debt agreement;the second,the debt to couples living together,the third,one party is the purpose of debt for the family of husband and wife common interests.Under the general standards,based on the distinction between husband and wife's foreign debt incurred debt as contract or tort of debt as the research object to analyze the recognition rules of joint debt.If the contract debt,should distinguish between different legal relationship,when concerned with the internal legal relations of husband and wife,should according to "marriage law"article 41 of the usage rules to joint debt;When it comes to external legal relationship,husband and wife in principle according to the "marriage law judicial interpretation(2)"that presumption rules of concrete should be according to the obligee against different to distinguish the different situation of objects.If it is the debt of infringement,the author also put together a joint debt should take account of the relevant rules.The sixth part of the article,in view of the third part puts forward to a lack of supporting system,and the author demonstrates the big debts of husband and wife jointly sign system,publicity system of couple's agreed property,separation of debt system,husband and wife daily housework agency system set up and perfect.