A Study On The Legal Issues Of The Determination And Settlement Of Joint Debts Of Husband And Wife

Both husband and wife's external activities may trigger debt relations.The debt of husband and wife is not only related to the equal legal status of husband and wife and the stability of the marriage and family,but also to the rights and interests of the third party,namely the creditor,and the security of civil transaction.In order to protect the security of civil transaction and the interests of creditors,to protect the harmony of marriage and family,and to protect the joint property rights and interests of husband and wife,a reasonable regulation should be made in legislation to deal with the relationship between the two and to balance the interests of the two.Claims and debts disputes arising from external activities between the husband and wife need to be resolved by a complete debt system of husband and wife.Therefore,in-depth study of the husband and wife debt system,the establishment of a perfect joint debt system of husband and wife in China's marriage and family law,the formulation of a more complete legal system for the determination and settlement of the joint debt of the husband and wife,is the need to protect the interests of family and maintain social order.The current legislation on marital debt in China is simple and decentralized,lacking of integrity and systematization,and does not define the scope of the joint debt of the husband and wife in detail and accurately.Among them,the usage rule of "living together for the husband and wife" and the time rule of "the existence of the marriage relationship" are different from each other in judicial practice,which leads to the existence of different judgments in judicial practice.On January 17,2018,in order to resolve the debt dispute between husband and wife and third-party creditors,and at the same time to protect the interests of the three parties,the Supreme Law introduced a "new interpretation".The "new interpretation" would make the “contracted debts”of the husband and wife and the “family affairs debts” be established as the joint debt determination standards for husband and wife.The breakthrough provisions on the previous recognition standards pointed out the direction for judicial trials in legislation.However,the "new interpretation" is not perfect,and the "temporary" rule needs to be improved and perfected.The current legislative provisions still have some defects: the legislative system is not perfect;the scope of determination is not clear;the stipulations of the daily family agency system is lacking as well as the agreed property system and the separation system;the distribution of the burden of proof is contrary to fairness and justice;the effective settlement and recovery rules are lacking,and etc.The fundamental strategy to solve the issues of husband and wife's joint debt is to make efforts at the legislative level.In the current legal environment,the author hopes constructive opinions will be put forward to solve the issues of determination and settlement of joint debt of husband and wife in our country.The legislation should adhere to the three principles of equal status of husband and wife,independence of personality,trade safety and balance between the interests of husband and wife and the legitimate rights and interests of the creditor.The legislation should combine the practical experience of our country and puts forward some concrete suggestions on how to improve the system of joint debt determination and settlement of husband and wife from the point of view of entity and procedure.Concrete measures: adjusting the legislative position,placing the husband and wife debt independently under the matrimonial property system,expanding the scope of the joint debt determination,increase the "debt of good faith creditors";establishing a perfect system of family affairs agency system,separation of debt system,agreement of property publicity system,and other auxiliary systems;improving the burden of proof distribution,scientific and reasonable distribution of the burden of proof,establishing effective rules of debt settlement and recovery.