The Standard Of Recognition Of The Joint Debt Of Husband And Wife In China

Provided in Article 41 of Marriage Law of the People's Republic of China,"debts incurred originally by the husband and wife during living together shall be repaid together upon divorce";according to the provisions in Article 24 of the Supreme People's Court applying to The Interpretation for Several Issues(?)of Marriage Law of the People's Republic of China,"the debts for which the-creditor claims rights and incurred under the name of husband or wife during the period of existence of marital relations shall be treated as the joint debt of husband and wife.Unless the husband or wife is capable of proving it has beenclearly agreed by the creditor and debtor as the individual debt,or it belongs to the situations formulated in the third item in Article 19 of Marriage Law."The two provisions are different from each other,which has led to large differences in the results of application.The courts from all regions hold different opinions in understanding and applying the above two articles,so that there might be different sentences for the same case in the juridical practice.However the juridical reform is being drastically carried out,"different sentences for the same case" will be one of the judgment responsibilities of the judge.The Supplementary Provisions of Supreme People's Court applying to the Interpretation for Several Issues(II)of Marriage Law of the People's Republic of China approved by the Juridical Committee of the Supreme Court at the 1710th conference on February 20,2017 went into effect since March 1,2017,"it added two articles on the basis of Article 24 of the Supreme People's Court applying to The Interpretation for Several Issues(II)of Marriage Law of the People's Republic of China as the second and third items respectively:the husband or wife will not be supported by the people's court if he or she shall collaborate with the third party to fabricate the debts and the third party claims the rights.The husband or wife will not be supported by the people's court if he or she has got into debt during engaging in the illegal and criminal activities i.e.gambling,drug taking etc and the third party claims the rights." The law-making stipulation is still too simplified and lack of comprehensiveness and concreteness,hence the poor operability in the judicial practice;in practice,a great number of judicial interpretations have to be adopted to solve the disputes over the debt of husband and wife.Such legislative status has been unable to realize the debt problems of husband and wife existing in real life in great number;without the unified standards for trial,the judges will also enter into endless arguments and large differences,which will affect the establishment of judicial authority.In this article,with the four major parts including the definition of the joint debt of husband and wife,the identified standards and resolving methods for the joint debt of husband and wife as well as the improvement of the joint debt system of husband and wife,it elaborates the issues like the nature and characteristics of joint debt of husband and wife,the identified standards for the joint debt of husband and wife as well as the predicaments in the current judicial trial practice from the theoretical resource of the joint debt of husband and wife.First of all,for the nature of the joint debt of husband and wife,in this article,it believes that the joint debt of husband and wife shall be regarded as an entity without breaking the principle of relativity of creditor's rights;internally between the husband and wife,it shall follow the agreement if there is any or the legal principle if there is no agreement.Secondly,in this article,it proposes the individual opinions in the identified standards for the joint debt of husband and wife in combination with the viewpoints including "theory of time","theory of purpose" and "theory of common life purpose" etc.It believes that "joint debt of husband and wife" refers to the legal debts incurred by maintaining the common life and production of the family,engaging in the civil and commercial activities for the purpose of common life,performing the legal obligations i.e.maintenance,incurred by legal regulations or upon the mutual assent of both parties and both parties have enjoyed the profits brought forth by the debts on the basis of marital relations.Thirdly,for the debts incurred by the husband or wife under the individual name,as the heterogeneity in the judicial circles to applicable laws,has resulted in the difficulties in judging the joint debts of husband and wife in the current juridical practice.In this article,it has respectively elaborated the identification of the special debts i.e."debts incurred by the daily life","debts incurred by the common life or ratified by the other party that exceeding the daily life" as well as "debt of tort,debt of guarantee,debt of separation,transformation of premarital debt and debt of support and maintenance"in combination with the learning of related academic writing and individual experience from the juridical practice.After the definition,judgment and identification of the joint debt of husband and wife,the suggestions have been proposed to further improve the system of joint debt of husband and wife according to the legislative and judicial problems for the joint debts of husband and wife in China at the current stage.Efforts are made to seek an equilibrium point in the profits of husband and wife,the third party and the safety and stability of social transactions,so as to provide the correct regulations for the judgment of the judges,realize the unity of the juridical trial,maintain the juridical dignity,so as to promote the construction of judicial justice and government by law.