A Study On The Legal Regulation Of The Joint Liabilities Of Husband And Wife

China's legislation on joint debt between husband and wife has been in the process of dynamic adjustment and continuous improvement for a long time,and related issues are also the focus of academic research.The first three contents of the Draft Code of Marriage and Family of the Civil Code,published during the period of writing this article,are to be adopted directly as the legal provisions of the joint debt of husband and wife in January 2018 by the Supreme People's Court on the Interpretation of the Applicable Law in Judging Cases Involving Couples' Debt Disputes(hereinafter referred to as the Interpretation of Law [2018]2].However,no matter from the theoretical controversy or the practical effect,the relevant provisions of the interpretation [2018] 2 are not flawless.Whether the relevant provisions can be directly copied in the compilation of the Civil Code remains to be discussed.The compilation of the Civil Code is an opportunity to improve the legal norms of joint debt between husband and wife in China.The author expects to put forward some shallow suggestions on improving the legal provisions of joint debt between husband and wife in China on the basis of a more comprehensive study.This paper is divided into five parts as follows:The first part is the question.Through two cases,it is pointed out that neither before or after the promulgation and implementation of Law Interpretation No.2,the legal regulation of joint debt between husband and wife in our country has not achieved the protection of both creditors' rights and legitimate property rights of husband and wife.Under the circumstance that the interpretation of No.2 [2018] is not perfect,it is not appropriate to directly copy its content as the legal norm of joint debt between husband and wife,and to codify it in China's Civil Code.The second part is about the concept and characteristics of joint debt between husband and wife.Through sorting out the concept definition of joint debt between husband and wife in academic viewpoints and practical identification,it is found that it may be complicated and one-sided to describe in detail the different characteristics formed by different types of debt between husband and wife.Because of the characteristics of the joint debt of husband and wife,it is doomed that the legal regulation of the joint debt of husband and wife can not be stipulated in a comprehensive way only through a legal provision.The relevant legal regulation should be a system of cognizance rules composed of several legal provisions.The third part is about the value orientation of the legal regulation of joint debt between husband and wife.Marriage and family law belongs to a part of civil law,and is the most reflective part of the ethical characteristics of civil law.While conforming to the value orientation of civil law,marriage and family law has its unique value orientation.The legal norm of joint debt between husband and wife belongs to the important content of marriage and family law,which should at least have the value orientation of freedom,equality,security and efficiency.The fourth part is about the rules of identifying the joint debts of husband and wife.The current rules for identifying the joint debts of husband and wife mainly consist of the interpretation of Article 24 Presumption Rule [2018]2.In the absence of the daily household agency system,the relevant standards for identifying the "daily needs of family life","joint life of husband and wife" and "joint production and operation" established by the rules are not operable.We should establish a daily household agency system,while conditionally reserving the presumptive rule of Article 24,excluding the presumptive rule of Article 24 for debts of loan and guarantee types,and strictly review the rules established by Law Interpretation [2018] 2 for debts of loan and guarantee types,so as to establish joint debts between husband and wife within this framework.Rule system of affair identification.And build and improve the corresponding supporting system.The fifth part is to study the rules for the settlement of joint debts between husband and wife.There is a theoretical controversy on whether the joint and several debts of husband and wife can be treated according to the type of joint and several debts of husband and wife.Through the cooperation of different provisions,it is a solution to clarify the liabilities of husband and wife for their joint debts under different recognition rules.In order to realize the legal value orientation of equality and freedom,we should construct internal compensation rules in the relationship between husband and wife.