A Research On The Distinction Of Couple Common Debt In China

The determination of couple common debt is not only related to the husband and wife,but also has a profound impact on the protection of the interests of creditors.As for the boundary between the husband and wife's joint debt and personal debt,due to the relatively strict principles of the law,the Supreme People's Court has issued a number of judicial interpretations,and the theoretical circles have different opinions.The case of joint debts of husband and wife in China has increased year by year,and there are still differences injudicial recognition.Therefore,it is of great theoretical and practical significance to study the identification of joint debts of husband and wife.China's rules for the determination of joint debts of husband and wife have gone through too many principles to a relatively specific evolution process.The Marriage Law of 1950 and the Marriage Law of 1980 mainly used common life as the standard for determining the joint debt of husband and wife,and did not clarify the boundary between the joint debt of the couple and the individual debt.In 2001,the relevant judicial interpretation established the family agency system and time presumption rules for the reasons for the husband and wife's agreement and common life as couple common debt.The law interpretation[2018]No.2 overthrows the time presumption rule and establishes the daily family presumption rule.Compared with the time presumption,the daily family presumption is more conducive to maintaining the safety of marriage,respecting the relativeity of the contract to a certain extent,and reasonably assigning the burden of proof.However,in the application of the Law[2018]No.2,there are still problems in daily household affairs,common living,and debts arising from joint production and management.The theoretical basis for daily family assumptions is the family agency system.The agent of the daily family agent can be exchanged with the agent,and the agent has full civil capacity,and the agent consequences are shared by both parties.It is a special agent and should be stipulated in the civil code marriage and family code.The scope of the current routine rules for daily family matters is not clear,and there are no general standards and specific enumeration rules.In judicial practice,some courts define the daily life needs as the education of both husband and wife and the children of minors,as well as daily cultural consumption,on the basis of summing up the experience of trial.The scope of daily family matters should establish general judgment criteria and be supplemented by positive enumeration and reverse exclusion.It is generally considered that the daily household debt should consider both the debt use and the debt amount.The use of the debt is specifically determined by the court in combination with the case.The amount of the debt should be determined by considering the per capita income of each place,the actual income and expenditure of the family in the case,and the reason for the debt.Debt arising from daily family matters should include the food and clothing of family members and the cost of living less than the necessary value,including the necessary medical expenses,daily necessities,education for the children,and the cost of support for the elderly.The debts generated by daily housework do not include false debts,illegal debts,large installment debts,and debts during the separation of husband and wife.Other husband and wife joint debts include debts generated by living together and debts generated by joint production and operation.The essence of living together is the family interest,and it is the property behavior of dealing with the family's common property for the family's interests.The debts generated by living together belong to other family matters than daily family matters.The purpose of both is family interests,but the debts generated by living together are inappropriate and non-essential,and the husband and wife need to negotiate and decide.The joint production and operation is divided into family-type joint production and operation and group-type joint production and operation.The benefits of family-type co-production and management are used for families,and they emphasize the commonality and integration of operations compared to living together.The income from personal joint production and operation is used for individuals.When the source of funds is the joint property of husband and wife,the debts generated by them are common debts.