Study On The Burden Of Proof In Relation With Joint Marital Debt

The issue of the Joint marital debt has been widely valued by the academic and practical circles."Article 24" stipulates that Joint marital debt shall be determined based on the "duration of the relationship between husband and wife",the debtor shall bear the burden of proof that it does not belong to the Joint marital debt.It has received many criticisms and punitive actions.The legal interpretation of [2018] No.2 has emerged as the Times require.It specifies the content of joint marital debt: the debt of expression of common intention of husband and wife,the debt for the daily life of the family,the debt beyond the daily life of the family but related to production and management.This type of debt classification has its merits.Although the legal interpretation of [2018] No.2 clearly stipulates that the debtor is no longer required to bear the burden of proof that the debt is not a joint debt of husband and wife,but it still has problems.Firstly,the burden of proof embodied in this judicial interpretation does not form a unified opinion.Secondly,there are also a series of problems in the application of the burden of proof of husband and wife's joint debt embodied in the judicial interpretation in practice.1.There are a large number of "false factual claims,no evidence" of the case;2.There is a cross relationship between different types of debt burden of proof;3.Different judges have different presumption rules about presumption of everyday household debt;4.In practice,the burden of proof of "debts incurred by joint production and operation" is not uniform.Therefore,it is necessary to correctly interpret the burden of proof of Joint marital debt embodied in the legal interpretation of [2018] No.2 from the perspective of Empirical Analysis,making it clear that the spouse bears the subjective burden of proof that "debts do not belong to the family's daily life",while the loaner bears the subjective burden of proof that "debts are the debts of the husband and wife's joint production and operation or the husband and wife's joint life,which are based on the common will or exceed the family's daily life." The following suggestions are made to perfect the burden of proof embodied in the legal interpretation of [2018] No.2: 1.Taking the objective burden of proof as the burden of losing the lawsuit,in practice,the judge should not take the subjective burden of proof in the case that the loaner has no proof of joint marital debt.2.Clarifying the logic of the burden of proof of the "three types" of debt,and making it clear that only completely excluding the three types of debt,the debt could not be regarded as joint marital debt.Because of the "presumption" rule for the debts incurred in the daily life of the family,so it needs to firstly determine whether "it is the household's daily living expenses debt?" 3.The "presumption" rule embodied in "debts incurred by families in daily life" should be implemented.According to local standards,the amount of "one spouse's debts for the daily life of the family" should be defined;a certain amount of debt should be deduced as the debt of the daily life.The judges will be given some advice by way of positive enumeration and negative enumeration.4.Law should refine loaner's proof requirements for "debts incurred by husband and wife in joint operation".Taking into account the difference between the provisions of the relevant law and the capacity to prove evidence,as long as the creditor can prove the fact that "the debt is owed by one party's operation",this debt should deemed as "Joint marital deb".