| The criteria for determining the joint debts of husband and wife,that is,how to determine the nature of the debts of one spouse,is not only to respect the embodiment of the independent personality of husband and wife,to protect the property rights of husband and wife,but also to safeguard the safety of transactions and to protect the interests and values of creditors.However,China's provisions do not conform to mutual coordination and unity.According to the current laws,regulations and judicial interpretations in China,there are three different standards of determination.The basis of the standard of "living together" is Article 41 of the Marriage Law of the People's Republic of China(hereinafter referred to as the Marriage Law).The standard of "the duration of marriage" is based on the interpretation of the Supreme People's Court on the application of the Marriage Law of the People's Republic of China.Interpretation(2)(hereinafter referred to as "judicial interpretation of marriage law(2)" based on article 24,as well as "interpretation of relevant legal issues concerning the trial of cases involving marital debt disputes"(hereinafter referred to as "interpretation of marital debt disputes cases")with the demarcation of "daily needs of family life".Different standards of determination lead to the phenomenon of "different judgments in the same case" and "different judgments in the same case" in the judicial practice of our country.In order to better protect the interests of the parties and enhance the credibility of the judiciary,it is necessary to clarify the criteria for identifying the joint debts of husband and wife.This paper argues that under the legislative background of the compilation of the Civil Code,the marriage and family law is mainly based on the principled provisions of Article 41 of the Marriage Law,and ultimately the criteria for identification are clearly defined through the judicial interpretation of the Supreme Court.Therefore,starting with three different standards,this paper analyses the differences in practice and the deficiencies of the regulation itself,thus giving some suggestions on the construction of the standard for identifying the joint debt of husband and wife.Following the idea of "breaking first and setting back later",this paper begins with the introduction of the theoretical basis of the joint debt system between husband and wife,which includes three different theories: the theory of "common agreement" takes the expression of the common intention of both husband and wife to borrow together as the essential condition,the theory of "common life" holds that the joint life of husband and wife is the prerequisite for the debt to be recognized as the joint debt of husband and wife,and the theory of "common property" advocates that The common property acquired by husband and wife after marriage is regarded as the scope of debt settlement.We think it is more reasonable to combine the theory of "common agreement" with the theory of "common property".O n this basis,it is analyzed that there are conflicts and contradictions between the unclear criteria for identifying the joint debt of husband and wife in China and Article 24 of the Judicial Interpretation of Marriage Law(II)and the Interpretation of the Case of Marriage Debt Dispute,which can not balance the protection of creditors and debtors.Further,by comparing the provisions of the criteria for identifying the joint debts of couples outside the country,drawing on the legislative rules of Germany,Switzerland and France,adopting its concretization of "family agency" and giving judges certain discretion,and combining with China's national conditions,the article 24 of the Judicial Interpretation of Marriage Law and the specific rules of family agency in the Interpretation of Matrimonial Debt Dispute Cases are integrated.Finally,through the judicial interpretation of the Supreme Court,the burden of proof of the joint debts of husband and wife is further improved. |
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