Daily Family Agency Rights And Its Institutional Construction

The daily household agency system refers to the system that the spouse deals with the daily household affairs and the third party for a certain civil legal act.According to the system,husband and wife act as agents for each other,enjoy the agency rights and share the debt liability.This system originated from the ancient Rome family appointment system,and later with the evolution of the times,many countries and regions in the world,have established the system.Since the establishment of the People’s Republic of China,the legal system has not been systematically established by many factors.Although China’s legislation is lacking,but the academic community has been paid close attention to the daily family agency system,and has reached a consensus to establish this system in legislation in the future.Determining the scope of daily household affairs directly affects the determination of personal debt or spouse’s common debt,and is the prerequisite of common debt determination rule.Therefore,to determine the scope of daily household,on the one hand is to refer to foreign legislation,but also should in line with China’s current national conditions.This paper analyzes the scope of daily household affairs from the perspective of protecting the transaction security and rationalizing the principle of common debt in the judicial practice,and puts forward some legislative suggestions on establishing the daily family scope in our country: Family affairs refer to business providing basic survival,health and recreation,development needs for family members.Daily affairs that spouse have right to solve including:(1)family members’ basic expenditure in basic necessities of life;(2)family members’ necessary expenses to maintain their health in health care,medicine,etc.(3)family members’ basic expenditure in daily entertainment and exercise.(4)the basic expenses of children’s education,personal development and maintenance of the elderly;(5)gifts to others or donation from others for the basic social needs of the family;(6)other matters that belong to daily affairs.One should ask the other for permits when resolve with the following affairs:(1)the sale of movable property or immovable property with a large market value;(2)a business with a personal nature;(3)a husband and wife who are not in the same direction as the husband and wife in the ordinary course of life;(4)the risk of greater investment in family property;(5)other matters that belong to the major family matters.At the same time,this paper puts forward the new spouse debt determination rule for the current situation of the husband and wife’s personal debt or common debt: Debt that happened in solving of daily household affairs,no matter in the name of the individual or both is the common debt.Debt that happened beyond the scope of daily household affairs but owed by the husband or wife is not responsible for the joint debt of the non-borrowing party’s spouse;but the debt should be treated as common debt if the creditor has reason to believe that the debt is made jointly by the spouses.A non-debtor ’s spouse can not confront a goodwill third party without reason or disagreement.On the occasion of compiling the kinship of the people of the civil code,the legislators in China should write the daily household agency system into the kinship series and further improve the system so that it can really play its due role.