A Study On Distributing The Burden Of Proof And Proof Standard In The Recognition Of Marital Debts

The marital debts are divided into personal debts of couples and common debts of couples.In the rules for identifying the debts of couples,the laws of our country are regulated by principles and some exceptions,enumerated laws.The law is trying to find a balance between the protection of the interests of creditors and the interests of the spouses of non-debtors to achieve judicial justice,which can be seen in the legal evolution of the determination of marital debts.The distribution of the burden of proof has duality,burden of proof in the sense of objectiveness(the result)and a subjective(responsibility of the provision of evidence).The former is set by law,and the judge can apply it directly.The latter is the request of the parties and defense against both parties,and the judge judged through free intuition in the course of opposing the defense.The objective burden of proof directly stipulates the question of who will bear the adverse consequences when the truth is uncertain.On the issue of distribution of burden of proof,there has been a prominent contradiction between Article 41 of the "Marriage Law of the People's Republic of China"(hereinafter referred to as the "Marriage Law")and Article 24 of the Judicial Interpretation of the Marriage Law(?).The former is based on the purpose of debt is living together" as the standard of identification.The latter regards "debt occurs during the existence of matrimonial relations" as the principle of recognition,and the duty of proof of some "exceptional circumstances" and "unused the debt for living together is allocated to non-debtors.The "Interpretation of Issues Concerning the Application of Law in the Trial of Cases Concerning the Debts of Husband and Wives"(hereinafter referred to as the "new explanation")issued by the Supreme People's Court in 2018 allocated the burden of proof for the determination of common debt beyond the scope of daily family matters to creditors.The adverse consequences are borne by creditors.But there is no a clear definition of the family's daily living standards.The creditors who is not involved in domesticity,How to prove the fact of"used in a common life"?How to distribute the burden of proof?What is the standard of proof?In practice,the guidance cases or more specific instructions of "common life"is important for judges judgment.Only both parties continue to provide and refute evidence can they obtain true "facts"and promoting the standardization of social transactions as a whole.This article is divided into four parts.The first part is the overview of marital debt determination,distribution of burden of proof and the standard of proof.The second part analysis the change and the defect of distributing the burden of proof and proof standard in the recognition of marital debts by case,which in our country.The third part is objective theoretical analysis of distributing the burden of proof and proof standard in the recognition of marital debts.The fourth part puts forward some suggestions to further improve the distribution of burden of proof in marital debt.