The Burden Of Proof In The Determination Of Joint Debts Of Spouses

With the continuous growth of my civil cases,more and more cases of joint debt determination and allocation of responsibilities have entered the scope of the courts,especially when the grassroots courts in China are trying folk loan disputes and divorce disputes.The recognition of the joint debt of spouses and the related issue of the allocation of proof responsibilities are often addressed.Careless handling may lead to misidentification of the debtor's personal debt as joint debt or to the exclusion of de facto joint debt from joint debt.First of all,the paper examines the problems in practice,standard and operational aspects.The following problems can be found through the judicial practice of the allocation of the burden of proof: the difficulty of the evidence of the parties and the difficulty of the judge's factual determination;The following problems can be found through the normative investigation of the distribution of the burden of proof: the single litigation structure stipulated by the legal system,and the improper rules for the presumption of joint debt of husband and wife;The following problems can be found through the examination of the judge's operation in the specific case of the allocation of the joint liability of the husband and wife.Secondly,the author analyzes the main body of proof and the object of proof.The subject of proof of joint debt recognition needs to be analyzed in conjunction with the litigation model of joint debt recognition.The litigation model of joint debt recognition of husband and wife includes the external conflict model of creditor prosecution and the internal conflict model of both spouses when they divorce.Different conflict patterns prove that the subject is also different.Under the mode of external conflict,when the creditor claims the joint debt of the husband and wife,it proves that the subject is the creditor,and when the creditor claims the individual debt,it proves that the subject is the borrower;In the mode of internal conflict,the main body is proved to be the borrower,regardless of its litigation status.There are two constituent elements of the joint debt of husband and wife: First,the establishment of the basic debt and debt relationship;The first is that the non-leveraged spouse is eligible.The point of contention and difficulty is how to prove that the non-leveraged spouse is eligible.This constituent element needs to be determined by means of other basic facts.These basic facts are: agreement,daily family life,and joint production and operation of husband and wife.Finally,the author analyzes how to reasonably distribute the burden of proof in the recognition of joint debts.This paper introduces the general rules of burden of proof and the mitigation rules of burden of proof.Based on the analysis of the main body and the object of proof,this paper puts forward the basic concepts of the distribution of the responsibility of proof,namely the concept of value balance,the concept of type distinction,and the concept of weapon equality.On the basis of adhering to the general rules on the allocation of burden of proof,it is necessary to introduce the obligation of clarifying the case of a party who does not bear the burden of proof.It is not a general obligation of clarifying the case,but a subordinate claim--the burden of proof.At the same time,judges should be supplemented by a comprehensive judgment based on the rules of daily experience when trying specific cases.The article also put forward the feasibility suggestion to different litigation mode,different proof object's concrete rule of burden of proof allocation.