A Study On The Recognition Rules Of Marital Common Debt

The promulgation and implementation of Legal Interpretation[2018]No.2 Judicial Interpretation clarifies the judgment standard of marital common debt,which is conducive to regulating market transaction order and maintaining family harmony and stability.Balancing the protection of the creditor's interests and the rights of the non-indebted spouse has always been the value orientation pursued in the process of legislation and interpretation and judicial practice.The change of distribution of burden of proof means that the creditor needs to improve risk prevention awareness.The basic logic of the interpretation provision for the recognition rule of joint debts of couples is that couples have the common meaning of borrowing,which is identified according to the common meaning,and is summarized as "joint debt co-signing".The presumed husband and wife who have no definite common intention but meet the scope of family agency have common intention;It can not be inferred that it is based on the joint intention of the husband and wife,but based on the use of the loan,that is,whether it is used by the husband and wife to live together,to jointly produce and manage,to determine whether it is a joint debt of the husband and wife.There are also some deficiencies in interpretation,such as how to confirm the scope of agency of family affairs,how to determine "husband and wife living together,joint production and operation",and there are no clear provisions on how to recognize the debt before its introduction,namely the retroactivity of judicial interpretation,which need to be further improved and perfected through legislation and trial practice.