| In recent years,private lending disputes are increasing dramatically.In judicial judgment on private lending disputes cases,the focus is always on whether the debts belong to the common debts of the couple.Because of the ambiguous rules and different standard in current legislation,the results of similar cases are quite different in practice,which could damage the credibility of justice system seriously.Meanwhile,the common debts of the couple in private lending dispute are related to the interests balance of another party of a couple and the benefit protection of creditor.The defined “purpose standard” and “time standard” in current legislation only focus on one party,and can hardly settle the specific problem on couple's common debts in the dispute.Therefore,the overall thoughts of this paper is based on two aspects which are the positive law and juridical practice of our country.Analyzing the current rules and practice,surveying and reflecting from the perspective of theory,this paper puts forward a proposal of identification with legitimacy and legality on couple's common debts.Specifically,the author firstly summarize the evolutionary process of the approval regulations on couple's common debts in China's marriage legislation,sort out the skeleton of “double standards” in current legislation,and interpret the defects of two standards respectively in detail to clarify the essential differences of two approval standards.Hereby a recognized standard should be established to give consideration to the benefits of one party of a couple and the creditor.Secondly,through the observation toward judicial practice in the settlement of private lending disputes,the author finds that the Clause 24 of Judicial Interpretation II of Marriage Law is occupying the absolute “hegemonic position”,therefore nearly all debts are judged to couple's common debts.Such kind of unreasonable situation has attracted the attention of people's court.Hence the people's court has taken actions to improve the present situation.For example,the people's courts of Shanghai,Shenzhen and Zhejiang Province have formulated new rules to revise the approval standard of couple's common debts in the Marriage Law and its judicial interpretation.All these creative “local experience” proved the feasibility of establishing new standards,and provided reliable material of experience.In the end,this paper has surveyed and reflected on couple's debts and its approval rules from the perspective of theory,clarifying the legal base and legal character of couple's common debts.On this basis,the paper puts forward the three-step proposal on couple's common debts in private lending disputes.The first step is to determine whether the debts involved in the legal case belong to the common debts of the couple according to couple's agency of family affairs.If the borrowing of one party is within the remit of couple's agency of family affairs,then whether the other party has the intention to borrow the debts,it shall be recognized as the common debts of the couple.Otherwise,it shall not be regarded as the common debts.The second step is to examine and appraise the debt financing behavior beyond the scope of couple's agency of family affairs from two aspects.Firstly it should be found out that whether both of the parties have the intention of borrowing debts.Secondly we should figure out whether the profits made from the debts are shared by both parties.Either condition that is met shall be recognized as their common debts.If the debts involved in the legal case do not accord with the preceding condition,then it shall not be regarded as common debts.Under this circumstance,a third step plan will be implemented to protect the interests of creditor.That is to take the debts involved in the case into consideration within the scope of contract law.If the debts financing of one party is in accordance with the elements of apparent agency listed in the contract law,then the debts liability problem shall be settled in line with apparent agency system. |
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