Study On Identification And Liability Mode Of The Couple's Joint Debt

how to define the couple's joint debt and the way to assume the liability is a significant issue on the couple's property relationship study.The key to solve this issue is to balance the interests between the creditor and the couple.However,from the judicial practice effects,the legislator is not able to find the balance but to make the situation worse,which has caused discontent and boycott from the people.As a result,the research on this issue has been raised to a higher priority.In recent years,driven by the law practitioner,the supreme court has brought out several new judicial interpretations,which has made a good progress.However,the legislation still complies to the wrong logic,that is "the couple's joint debt is a common situation and the personal debt is an exception" and neglects that the couple's joint debt is an exception according to the debts law,and that's why the legislator cannot build a rational and complete system to solve this issue.the first chapter discusses the legal foundation of the couple's joint debt.According to the current legislation and legal practice,the couple's joint debt is recognized from the debt's using purpose,the couple's will,whether the gains of the debt are incorporated in the couple's jointly owned property or are beneficial to both of the wife and the husband.While from the writer's perspective,the legal basis of the couple's joint debt is constituted by the matrimonial common effects,the couple's property system and the couple's common will.Firstly,the matrimonial common effects are the legal basis of the using purpose criteria,which should be defined in the scope of daily life items.If the couple are in separation,they will be no longer bear the daily life expenses of each other.Secondly,the couple's jointly owned property system is the foundation of the rules,that is,when the gains of the debt go into the couple's jointly owned property and are actually under the charge of the couple,the debt can be deemed as the couple's joint debt.Finally,according to the debts law,the debt based on the common will of the couple should be recognized as the couple's joint debt,but it is not necessary to be regulated in the marriage law.As for the interests share criteria,it cannot be adopted due to its lack of legal basis.The second chapter discusses how to assume the liability,which is an issue always neglected by the legislator.As a result,the problems such as the lack of regulations regarding the different types of the debts and the way to realize the debt without divorce,hasn't been solved for a long time.And the legislator should legislate regarding the two concrete problems.The liability system can be built on the basis of legal foundation creating the couple's joint debt.The debt caused by family daily life items should be regulated under the matrimonial effects chapter,regarding which the couple should assume joint and several liabilities.The debt caused on the basis of jointly owned property benefit criteria should be regulated under the couple's property system,regarding which the party of the couple who caused the debt should assume the liability with his or her personal property when the jointly owned property is not sufficient to pay off the debt.The marriage law has no need to regulate the couple's joint debt caused by the couple's common will,because it is recognized directly according to the debts law and have no business of the couple's status,and the distribution of the liability should also be variable according to the specific debts law.As for the personal debt,when the personal property of the party cannot pay it off,the law should entitle the other party and the creditor to apply for a separate property system.To improve the judicial practice,the third chapter lists the common types of the debts and discusses their recognition and liability assumption.The first type is the debt of business and it can be divided into three situations:the first one is when the couple are both in charge of the business,the debt caused by the operation of the business should be regulated by the specific business law;the second one is when one party invests the business with the jointly owned property with the other party's permission,the one who doesn't join the management of the business should only assume the liability with the jointly owned property;the last one is when one party invests with his or her personal property and manages the business alone,the debt caused by the business should be regarded as the joint debt only when the gains of the business actually go into the jointly owned property.The second type is the debt caused by torts or illegal behaviors.This type should be recognized regarding whether both of the couple join the activity or whether the jointly owned property benefits,the former one should be regulated by the law of torts or other concrete law,and the latter one should be recognized according to the jointly owned property benefit criteria.in the fourth chapter,the writer advices to abolish the current joint debt presumption regulation by analyzing its possible problems according to the problems of the old presumption regulation reflected by the judicial practice,combining the legal basis of the couple's joint debt and the basic logic of the presumption.At the same time,the writer raises several methods to protect the creditor's interests such as activating the judicial entity's subjective initiative,transferring the burden of proof according to the concrete situation,entitling the creditor to avoid the property deeds concluded by the couple,damaging the creditor's interests and to apply for a separate property between the couple when the debtor's personal property is not sufficient to pay off the debt.