The Competition Of Article 24 Of Marriage Law Judicial Interpretation ? And Article 41 Of Marriage Law In Judicial Process

With the rapid development of our country's economy and society,couples' participation in economic activities becomes more and more frequent,which inevitably leads to the creditor's rights and liabilities with the third party.The problem of couples' debt is not only related to the interests of both husband and wife.It is also related to the interests of the third party who is engaged in market transactions.It is necessary to deal properly with the problem of joint debt between husband and wife and to protect the lawful property of the husband and wife and the interests of creditors.The premise of the husband and wife to undertake the debt is that the debt is real and protected by law.In judicial practice,the determination of couples' debt is based on Article 24 of Marriage Law Interpretation II or Article 41 of Marriage Law.The difference mainly lies in the burden of proof distribution and the identification standard of husband and wife's common debt.The latest judicial explanation,released in January 2018,sets out more detailed rules on how to assume debt is a debt owed by a spouse or a couple's joint debt and the distribution of the burden of proof.Through the comparison of Article 24 of Marriage Law Interpretation II or Article 41 of Marriage Law,we can have a more thorough understanding of the latest judicial interpretation.On the basis of improving judicial efficiency,law and economics seek to allocate judicial resources more reasonably.Through the analysis of law and economics,it is explained that it is more efficient to determine whether husband and wife share debt or personal debt in judicial practice.To realize the fairness and justice in the civil judicial practice as far as possible,to solve the different judgment phenomenon of the common debt cases in the divorce cases of husband and wife,the maximization of the social overall interests is the efficiency goal of the law and economics.It can not only provide direction for judicial decision,but also guide citizens' behavior choice.Based on the judicial practice,this paper compares the two rules of mutual debt recognition by comparing the data of relevant cases and cases,and finds out the rules and influencing factors that the court has applied in dealing with the joint debt of the husband and wife.This paper analyzes the causes of this phenomenon with the methods of cost andincome,game theory and so on,and explains the influence of court case law on the future economic activities of husband and wife before and after marriage by combining the relevant legal theory and trial experience of husband and wife debt law.