Case Analysis Of Distribution Of Burden Of Proof Of Joint Debt Of Husband And Wife

The family,as a stable and closed production and living unit,has been valued by the ruling class since ancient times.The self-sufficient small-scale peasant economy made ancient China pay great attention to the family.In the feudal period of ancient China,there was the concept of patriarchal clan and state,and the construction of the family had an important impact on the stable development of society and the stability of political rule.In modern society,everyone is an independent individual,but at the same time,the family as a property unit is also one of the important subjects of the market economy.With the continuous development of commodity economy,the family,as a living property group established on the basis of marriage,inevitably carries out civil activities with other subjects of the society,and has creditor's rights and debt relationship with other subjects of the society,and then the problem of marital common debt arises.However,in today's booming economic activities,more emphasis is placed on the independence of personality in the relationship between husband and wife,and the couple can no longer be regarded as a general couple as a whole.If the husband or wife borrows money from others in the name of the individual,it will be considered as joint debt in most cases.If the "lender" and "borrower" collude with each other maliciously,they try to conceal their property by means of fake divorce.Husband or wife one party borrows debt to pull spouse maliciously to assume responsibility together also possibly.The disputes arising from the personal debt of the husband or the wife are not only related to the protection of the common property of the husband and wife,but also related to the protection of the interests of creditors,the maintenance of transaction security and other important issues.However,in the trial practice,the way to determine the nature of the debt of the husband and wife party is not uniform;The burden of proof of the parties involved in the distribution of the debtor,the spouse of the debtor and the lender is also relatively confused.There are some differences on the recognition of the joint debt of husband and wife and the distribution of burden of proof.Article 41 of the marriage law of the People's Republic of China(hereinafter referred to as the "marriage law")takes the use of debt as the criterion to judge the nature of debt,which is summarized as the "use theory" in China's theories.It is unfair to let lenders prove that the purpose of a couple's debts is not public or known."Marriage law judicial interpretation(2)" the 24 th article(hereinafter referred to as the interpretation of the 24 th article)provides that the legal presumption of time,the main intention of the presumption of time is to take the husband and wife common property as the creditor's right guarantee,to protect the legitimate rights and interests of creditors,to maintain the safety of transactions.However,due to the imperfection of the legal provisions of "daily family affairs agency" in China,unreasonable losses may be caused to the borrower's spouse.The supreme people's court on the trial involving couples debt disputes on the relevant problem of applicable law interpretation "[2018] no.2(hereinafter referred to as" the dispute over obligation of husband and wife to explain ")article 3 rules also joint debt burden of proof allocation,by reasonable distribution of evident burden of proof,can effectively balance the legitimate rights and interests of three parties.The above laws and regulations play an important role in the distribution of burden of proof,but as mentioned above,there are still some problems in practice.At present,when the civil code of our country is being compiled,the problem of marital joint debt,as one of the important problems in the marital property system,should be further improved.This article is around this topic to carry on the discussion.The main idea of this paper is to combine three typical cases in judicial practice,analyze the legal norms and theories in China,and put forward some Suggestions on the distribution of the burden of proof of the joint debt of husband and wife.Main viewpoints and research conclusions of this paper: through comparative analysis of three cases,this paper sorts out the distribution of the burden of proof of the joint debt of husband and wife,and believes that article 41 of the marriage law should be regarded as a general principle of the distribution of the burden of proof.Explanation ii: the distribution of burden of proof in article 24 is not reasonable;For the "supreme people's court on the trial involving the couple's debt disputes related to the application of law related to the interpretation of the allocation of burden of proof" basically agree with the way,and put forward some Suggestions and thinking about its shortcomings,that the application of the controller's theory of self-evidence for the distribution of burden of proof.This paper exerts the method of empirical analysis and comparative analysis,through three typical case response problems of joint debt burden of proof system in our country,in combining the theory of joint debt burden with the husband and wife together debt legislation present situation,put forward some further perfect joint debt burden of the distribution system was discussed,and put forward using controllers from the theory to the burden of proof allocation.This paper starts with a typical case and combines with China's legal norms and trial practice to put forward some Suggestions on the distribution of the burden of proof of the joint debt of husband and wife.