On The Determination Of The Joint Debt Of Husband And Wife

In China 's current legal system of the marriage and the family,about the identification of common debt of husband and wife,we have four main rules,which is "For the common life","The duration of the marriage relationship",“ Husband and wife daily family agency” and the rules of exclusion in the common debt,“Agreed to exclude”,“Illegal debt exclusion” and “False debt exclusion”.But the relevant rules failed to form a unified system,the rules are not clear,and there are some conflicts between the rules.So in the judicial practice,leading to the judge is not clear to determine the standard to identify common debts for husband and wife,in the debt disputes.First of all,we should determine the value of husband and wife common debt,that should be returned to the essence of the marriage and the family.And then we should explore the applicable level of the rules.First of all,we should determine whether there is the case of husband and wife agreed to borrow;subsequently,should be given priority to the rule that is the “daily household agency rules”;If it is not within the scope of daily household agents,It should be based on the use of rules,to examine whether it is used for husband and wife to live together,in this process also supplemented by the time presumption rules.Also combined with the reasonable distribution of the burden of proof of the parties.In view of the lack of the supporting system of the current common debt determination mechanism,it is necessary to refine the rules of “the daily family agency system”,determine the scope of daily household agents,so delineate the scope of the rule.In this context,should be identified as husband and wife common debt.We should be established the registration publicity system about the husband and wife agreed property system,in order to achieve the common debt of husband and wife.After publicity,that is have the effectiveness against the third person,should not be recognized as a common debt.We should also establish a system of separation of husband and wife,during the separation,the rights and obligations are different between husband and wife,in order to establish common debt recognition mechanism about the separation of husband and wife.Under normal circumstances,in the separation period,is not recognized as a common debt for husband and wife.