Review And Improvement Of The Marital Joint Debt Determination Rules

The recognition of joint debt is a cross issue between the contract law and the marriage and family law,and it is also a legal issue that all judges engaged in civil and commercial cases must face.Especially in the period of the high incidence of private lending dispute cases in recent ten years,it is the difficult problem that cannot be avoided in judicial practice.The recognition of martial joint debt is of great significance to the protection of the rights and interests of spouses who do not float a loan and bona fide creditors.In order to further explore the nature of marital joint debt,this thesis is divided into the following four parts:Part One,with the historical analysis method and from the historical evolution of the joint debt determination rules in our country,summarizes and analyzes the legislation evolution and the current status of the rules,which cover all the legislative and judicial interpretations,approvals and case replies etc.of the joint debt determination rules in our country since the founding of New China.Part Two analyzes the most important two judicial interpretations on the current joint debt determination rules in our country with a dialectical analysis method,including Article 24 of the Judicial Interpretation of Marriage Law(II)and the Judicial Interpretation of Marital Debt issued and implemented on January 18,2018.This part makes dialectical analysis under the background of special times.The latest Judicial Interpretations of Marital Debt will be as an important rule for joint debt determination rules in a long period of time.Owing to the simple clauses and short period of implementation,it is necessary to make detailed analysis of the understanding and application of the interpretations,hoping to offer some enlightenment and help to the judicial practitioners.Part Three discusses and analyzes the two special debts in judicial practice in combination with specific cases with the empirical analysis method,namely,whether tort obligation and warranted obligation committed by either spouse belongs to marital joint debt,and concludes that the above mentioned two special debts generally shall not be determined as marital joint debt;but if such cases conform to martial joint interests,such cases can be determined as marital joint debt.Part Four holds that the latest Judicial Interpretation of Marital Debt are further improvements on presumption,exclusion and burden of proof of marital joint debt within theexisting legal framework and on the basis of judicial interpretation.Its legal effect and social effect are yet to be tested by judicial practice.Therefore,we should take a higher perspective and take the opportunity of formulating the marriage and family copy in China's Civil Code,combine the different forms of the marital property system,and improve the determination rules of martial joint debt.