Analysis Of The Theory And Judicial Practice Of Marital Common Debts

The first part of this paper introduces the background and significance of the topic.Article 41 of the Marriage Law of the people's Republic of China stipulates "living together" as the criterion of common debt.However,since Article 24 of the Supreme people's Court concerning the application of the Marriage Law of the people's Republic of China has been promulgated,due to the subversion of the previous determination criteria,Article 24 of interpretation 2 is not applicable and requires the Supreme people's Court to delete it.At the same time,because Article 24 of interpretation 2 is simple and easy to carry out,it is unfair for the spouse of the borrower to bear joint and several liability because of its extensive application in trial practice.In the course of compiling the Civil Code of the people's Republic of China(referred to as "Civil Code Sub-Clause"),we can refine a more perfect common debt recognition standard from the analysis of the extraterritorial civil code and judicial practice,it has theoretical and practical significance to construct the common debt system of husband and wife in our country.The second part first combs our country's current law and the judicial explanation stipulation and gives the appraisal,then carries on the analysis to our country to confirm the husband and wife common debt constitution.Secondly,it analyzes the provisions of the extra-territorial civil code on the joint debt of husband and wife.In comparative law,there are common debts: debts arising from the consent of the husband and wife;the criteria for the use of common life,which are based on debts arising from daily life and the raising of children,with the exception of manifestly unreasonable expenses;Debts in the family agency that are beneficial to both spouses and are conducive to increasing the interests of the family or children;debts arising from the administration of common property in order to obtain common wealth.At last,the paper studies the constitutive elements of the joint debt of husband and wife in our country.Article 24 of interpretation 2 is put forward on the basis of the lack of protection of creditors' interests in Article 41 of the Marriage Law.The legal basis of its introduction is the legal property system after marriage.The Supreme people's Court considers that it should be applied in strict distinction between internal and external legal relations.However,the most fatal drawback of the theory of internal and external differences lies in the fact that the law is not clearly stipulated and that the courts lack a legal basis for its application.Moreover,the theory of internal and external differences is proposed in the replies and interviews given to the lower courts and does not have the effect of universal application.Nor is it strictly observed in judicial practice.The Supreme people's Court promulgated the second Supplementary provision for interpretation to explicitly exclude illegal and false debts,stressing that courts at all levels should first strictly determine the nature of the debt,and then judge the scope of the subject of the debt undertaking,which is certain positive significance.But it also tickles.On January 17,2018,the Supreme people's Court's interpretation of the issues related to the law applicable to cases involving marital debt disputes(abbreviated as "interpretation")first proposed that debts due on the basis of the common meaning of husband and wife are joint debts.Then the main body of debt is distinguished by the needs of daily life: daily life borrowing within the limits of need is a common debt;if it is beyond the scope of daily life,the creditor shall prove that the debt shall be used for the husband and wife to live together,for joint production and operation or for joint debt based on the common meaning of the husband and wife.At this point,the "presumption" criterion of Article 24 is invalid,but the other provisions of Article 24 are still valid.The introduction of this interpretation indicates that the judgment on the joint debt of husband and wife should be returned to its legal nature.The third part first introduces the exception of the joint debt commitment of husband and wife;secondly,after analyzing and summing up the judgment ideas of judicial cases,the author puts forward the factors to be considered in the determination of common debt.These include: whether the lender has fulfilled his goodwill and necessary obligation to pay attention to the purpose of the loan,whether the lender knows the borrower's family income and feelings(separation or divorce proceedings),whether the loan is consensual by the husband and wife or whether he or she shares the benefit of the debt,whether the loan is beyond the scope of the family agency or whether it constitutes an agency,etc.Finally,because the debt provided by one of the spouses is also related to the commitment of the joint debt,it is therefore studied,should still be grasped by the nature of its determination,that is,whether or not the guarantee obtains an interest to judge,not profitable,it is impossible to be used for living together,not a common debt;if there is no evidence to the contrary after profit,it is considered to be a common debt.