| The joint debts of husband and wife refers to the debts of the spouses or parties during the existence of the marital relationship for the purpose of maintaining family life,or fulfilling the obligation of bringing up children as well as supporting parents,or for the purpose of treating diseases,co-producing and operating,which also includes premarital affairs transforming to matrimonial debts.According to the Supreme People's Court's Interpretation on Issues Concerning the Application of Law in Handling Matrimonial Debt Disputes,the main matrimonial debts can be divided into three categories: debts on the basis of common will,debts that are resulted from family's daily life,and debts can be proved by creditors.The principle of proof of the last one mentioned above is consistent of the principle of “who claims,who proves”in civil procedural law.The joint debts of the husband and wife belong to the matrimonial debts,and the “use standard” is more in line with both the legislative spirit of China's legal property system and the principle of property rights and obligations of the couple.However,according to the difference of the nature of the debts as well as the basis of the liability,both parties respectively assume limited liability and unlimited liability.In joint debts of husband and wife,the debts incurred by the common will,daily family affairs agency,joint lives,joint operations and agency by estoppel should be assumed by the husband and wife with unlimited joint and several liabilities.However,the debts caused by spouse's operating liabilities shall be shouldered by limited liabilities with the matrimonial community property as well as the personal property.The husband and wife both have the right of recourse for thematrimonial debts after the marriage relationship does not exist,but after the death of one of the spouses,the one who survives and assumes more joint and several responsibilities has the right of recourse under the marital property system and inheritance system.The issuance of the "interpretation" has,to a large extent,eased the problems of inconsistency in the article 41 of "Marriage Law" and article 24 of the "Judicial Interpretation of the Marriage Law(II)".But as for the legislation concerning the matrimonial debts,it still has some flaws.For example,the boundary of “family daily life” and “joint life” in the “interpretation” is obscure.Besides,the “interpretation”doesn't take separation into account,which limit the effectiveness of the property system to a great extent.This paper hopes to improve the daily family affairs agency and to establish the marital separation system as well as the marital property publicity system to mitigate the problems mentioned above.There are four parts in this article: the basic theory of joint debts of husband and wife,the identification of the joint debts of husband and wife in China,the satisfaction of the joint debts of husband and wife,and the defects and improvements in our country's legislation on joint debts of husband and wife.The introduction consists of four parts,including research significance,literature review,research methods,and the structure of the paper.The first part,first of all,elaborates the definition of the joint debts of husband and wife in the academic circle.Secondly,it introduces the main understanding of the nature of the joint debts of husband wife: the joint debts theory,the partnership debts theory,and the joint debts theory.Thirdly,the author's understanding of the nature of joint debts of husband and wife is explained: the joint debts of the husband and wife belong to joint debts.The second part,from the perspective of historical research,studies and analyzes the legislative evolution of the joint debts of husband and wife in various stages of China,focusing on Supreme People's Court's Interpretation on Issues Concerning the Application of Law in Handling Matrimonial Debt Disputes,which mainly includes three kinds of joint debts: First,at the same time,in conjunction with the currenteffective laws and regulations,this part makes summary on the standard for determining the joint debts of husband and wife,this is,the debts based on the common will;Second,the debts caused by the family daily life;Third,the joint debts of husband and wife that the debtor can prove.Besides,the debts mentioned above can be specified by the debtor that a husband of wife's debts which is beyond the debts of the family's daily life in the marital period.If it is the joint husband and wife debt,it requires the creditor to bear the burden of proof,proving that The loan is used for joint lives,joint operation or common intention.In the third part,the main content is the satisfaction of the joint debts of the husband and wife.First of all,through the analysis on the effective law of the rules of satisfaction of joint debts of husband and wife,the rules are explained.Second,under the category of whether the marriage exists of not,this part explores the methods of satisfaction.In addition,depending on the nature of the debts and the basis of liability,the husband and wife have different types of responsibilities.At the same time,it was specifically stated that after the death of one of the spouses,the right of recourse of the exercise of the joint debts of husband and wife must be limited and restricted by the marital property system and inheritance system.In the fourth part,based on the existing research of laws and regulations concerning joint debts of husband and wife,the existing deficiencies in legislation are analyzed.The followings are include.The legislation of joint debts of husband and wife is relatively crude,and the phenomenon of “one size fits all” is too common.The the“separation” factor during the existence of marital relationship is not considered and the effectiveness of the agreed property system is limited.In order to solve the defects mentioned above,some suggestions were made,including the improvement of the daily family affairs agency system,the establishment of the marital separation system as well as the marital property publicity system. |
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