A Study On The Recognition Of The Community Debt Of Spouses

With economic development and changes in society,China 's divorce rate has reached to the top.Disputes involving marriage and family have also attracted great attention.Among them,the most controversial issues should be the determination of the joint debt of the spouse,and the judicial interpretations related to it changed a lot.Article 41 of the “Marriage Law of the People 's Republic of China” amended on April 28,2001 adopts the “standard of common living” to determine the common debts of spouses.The Supreme People 's Court adopts the "period of husband and wife" to determine the joint debt of the husband and wife.Disputes concerning Couples' Debt "implemented on January 18,2018 established "Co-signing of debts" and "daily household agency" systems.How to determine the common debt of husband and wife? This is directly related to the vital interests of people's lives.But on this issue,no matter in academic cognition or judicial practice,there are different cognitions and different judges.The preparation of China's "Civil Code" takes "marriage and family compilation" as a subcontent.It was originally thought that this opportunity could be used to further clarify the common debts of spouses and provide clear definition standards for the determination of complex and diverse types of common debts of couples.Unified judicial operating guidelines.However,the presentation of the content of the draft seems to evade this practical problem that should be paid attention to,and it does not provide a direct recognition standard and a basis for judgment on the determination of the common debt of the husband and wife.Based on the current legislative situation and judicial practice,this paper analyzes the legislative changes in the determination of the couple 's common debt in China,summarizes the practice of the couple 's common debt determination in judicial practice,and draws on the experience of other countries,Provide legislative suggestions and operational countermeasures for the improvement of the legal norms of China's "Civil Code · Marriage and Family Edition".The thesis is divided into five parts.The first part is an introduction,introducing the research background and significance of the paper.The second part,from the perspective of the argument of the doctrine,gives a general overview of the husband and wife's common debt itself,pointing out that the husband and wife's common debt needs to have three characteristics: purpose commonality,time limit,and commitment to jointness;and from the "use theory" and "will Different doctrines,such as "common theory" and "interest sharing theory",introduced the different perceptions of relevant scholars on the determination of husband and wife's common debt,and from the perspective of balancing the relationship between the two parties and creditors of the marriage relationship and better safeguarding the interests of all parties Carried out academic thinking on the determination of husband and wife's common debt,emphasizing the grasp of "commonality".The third part,combining Article 41 of the Marriage Law,Article 17 of the Judicial Interpretation of the Marriage Law(1),Article 24 of the Interpretation of the Marriage Law(2),and the relevant issues of the law applied by the Supreme Court in the "Couple Debt Dispute Cases" in 2018 "Interpretation" of the current legislative norms for the determination of spouses 'common debts,analyzes the judicial application of the determination of spouses' common debts under this legislative guide,and adopts a variety of research methods such as case analysis,data analysis,comparative analysis,etc.Analyze the situation of common debt determination,sort out the debt types of spousal common debt cases,point out that there is a blind spot in the determination of spousal common debt during separation,and find the reasons for the difficulty of spousal common debt determination in judicial practice.From the perspective of empirical analysis,identify the common debt of spouses The improvement of the legislative norms provides an empirical basis.The fourth part compares and analyzes the legal systems of the United States,Germany,France,Japan and other countries on the determination of husband and wife's joint debts,and sorts out their legislative styles and the specific system of the husband and wife's joint debts determination.It is believed that the German practice of standardizing the determination of the common debt of spouses to the property relationship of the spouses can be used for reference,which can not only improve the legislative level of the determination of the common debt of the spouses,but also form a more complete standard including the scope,liquidation,recovery,etc.Normative systems can also change the legislative status of the standards before and after the judicial interpretation of this issue,which are inconsistent or even conflicting.At the same time,it can also draw on the common life use rules of these four countries,the presumption rules for family agency rights,and the presumption rules for debts during the separation of spouses,to improve the standard for determining the common debt of spouses in China,and to make up for the lack of common debt determination in judicial practice.In the fifth part,from three perspectives,such as the improvement of the legislative system for the determination of the husband and wife's common debt,the improvement of the substantive rules,and the improvement of the rules of evidence,we put forward suggestions for the improvement of the determination of the couple's common debt in China.First,it is recommended to change the “Marriage Law” and its judicial interpretation in case of inconsistency between the provisions on the determination of the husband and wife 's common debt,and to carry out detailed and systematic provisions in the form of unified norms in the “Civil Code · Marriage and Family Edition” The second is to suggest that the determination of the common debt of the spouses should grasp the basic principle of "commonality",and on the basis of absorbing some of the determination rules in the "Interpretation of Law-related Issues in the Case of Couples' Debt Disputes ",whether the husband and wife have a " common agreement " "Sharing benefits" is an essential element of the determination,which meets one of them,that is,it is recognized as a joint debt of husband and wife,and the "co-debt co-signing" and "daily family agency" systems are written into the "Civil Code." Third,it is recommended to divide the burden of proof according to the type of debt,and to ensure the fairness of the determination of the common debt of the spouse by the standardization of procedures,so that the interests of the spouse and creditor bearing the debt can be maintained,and the fairness and justice of the law can be achieved.