Study On Determination And Improvement Of The Joint Debts Of Husband And Wife In China

The determination of the joint debts of husband and wife is closely related to their property rights and interests,and is also inseparable from the rights and interests of creditors.The Supreme People's Court has promulgated a series of judicial interpretations,replies,supplementary provisions and work announcements in view of the specific determination of the joint debts of husband and wife in judicial practice.However,upon the frequent voices of the Supreme People's Court,the controversy about the determination of the joint debts of husband and wife has rarely subsided,and its determination has become the legal focus of attention of all sectors of society.On January 17,2018,in response to the concerns of the masses,academic disputes and practical dilemmas,the Supreme People's Court,upon full investigation,issued the Interpretation on the Application of Law in the Trial of Cases Concerning the Husband-Wife Debt Disputes(hereinafter referred to as the Interpretation [2018] No.2).However,from the perspective of legal hermeneutics,how to correctly define the definitions of “family daily life needs”,“husband and wife living together” and “joint production and operation between husband and wife” under the Interpretation [2018] No.2 is no less a thorny legal issue.From the perspective of legislation,it is also required to make examinations in the empirical study whether the criteria for determining the joint debts of husband and wife established by the Interpretation [2018] No.2 have been comprehensive.Based on the empirical analysis and focusing on the above problems,this thesis explores the correct judgment rules for determining the joint debts of husband and wife under the current legal system,and proposes some suggestions on how to design the rules for determining the joint debts thereof in the compilation of Marriage and Family Chapter of Civil Code.In addition to the introduction and conclusion,this thesis consists of four parts:Part One starts from the historical evolution,combs the historical process of the rules for determining the joint debts of husband and wife in China,and explores the criteria for determining the the joint debts thereof in our country.As far as normative analysis is concerned,the criteria for determining joint debts thereof include the rules of common use,the rules of agreement between husband and wife,the rules of presumption of authority of family agency and the rules of presumption of time for loan in marriage;however,as far as the spirit of legislation is concerned,the principle is always upheld that the purpose or use of debt occurrence is living together of husband and wife.Part Two starts from “order,justice,fairness,efficiency and freedom”of private law,explores the hidden legal value in the Interpretation [2018] No.2,and takes 200 second instance sample judgments involved the joint debts of husband and wife which are issued in China Judicial Documents Network in 2019 as an empirical analysis and detects that there are still differences in joint debts of husband and wife in the extension,the criteria for determining the nature,the burden of proof under specific circumstances,and the form of liabilities assumed by the non-named party in the judicial practice upon the implementation of the Interpretation [2018] No.2.Part Three,on the basis of legal hermeneutics,analyses and explores the extension of “family daily life needs”,“husband and wife living together” and “joint production and operation between husband and wife”,and proposes some opinions on the distribution of burden of proof and the rules of liquidation under the Interpretation [2018] No.2.In terms of the allocation of burden of proof,it is suggested to make full use of the confrontation system to strengthen the burden of proof of the debtor;to promote the discretional evaluation of evidence by using the rule of daily experience,to increase or reduce the burden of proof of creditors appropriately,to enhance the duty of examination and to pay attention to investigation and evidence collection.In terms of the rules of liquidation,this part elaborates the legitimacy,rationality,the legislative evolution of marriage law and the value orientation of relevant judicial interpretations and holds that the joint debts of husband and wife should be repaid jointly by husband and wife.Part Four takes the compilation of civil code as an opportunity,and suggests that China's civil code should respond to rationalizing legislative compilation style and content,improving the daily family agency system,and establishing the marriage property contract registration system.Specifically,it is suggested to screen the rules of conflict,abolish some judicial interpretations,judicial policies and guidance cases,and absorb and improve the legal provisions accepted by the public;divide the matrimonial property system in the family relations of marriage law,and define the rules of determination and liquidation of the joint debts of husband and wife under each type of matrimonial property system;make clear daily household agency system;take marriage registration authority as the registration authority for the generation,alteration and revocation of husband and wife's agreed property,and indicate whether the husband and wife adopt the agreed property system.in a simplified form in marriage certificate.