Research On The Settlement Of The Joint Debt Of Husband And Wife In China

In the field of marriage and family,the hot topic should be the recognition standard and settlement of the joint debt of husband and wife.On the one hand,the provisions on the joint debt of husband and wife are mainly involved in the marriage law and the judicial interpretation of the marriage law.However,there are different definitions on the recognition standard of the joint debt of husband and wife and the distribution of the burden of proof It is also lack of rationality,and the provisions on the settlement of the joint debt of husband and wife are more simple.Under the premise that the laws and regulations are not clear,the liability of paying off the joint debt of husband and wife has been defined as the unlimited joint liability of husband and wife.This settlement rule brings a lot of inconvenience to many spouses who are not in debt,especially the introduction of Article 24 of the Judicial Interpretation II of the marriage law mainly uses the "time standard" to determine the joint debt of husband and wife,which makes many people "be in debt" for this purpose,so that the spouses who are not in debt bear joint and several liability for settlement.On January 18,2018,the judicial interpretation on the application of law in the trial of cases involving joint debt disputes between husband and wife(hereinafter referred to as "the interpretation of joint debt disputes")issued by the Supreme Court came into effect.It made more explicit provisions on the recognition of joint debt of husband and wife in China,which provided a strong basis for the practice and more consistent burden of proof Rational distribution.However,it is a pity that the interpretation of the dispute over the husband and wife's debts does not make more explicit provisions on the settlement rules of the husband and wife's joint debts.In particular,there is a lot of space for thinking about the recognition and settlement of the debt that the husband and wife bear in their own name.In nature,the joint debt of husband and wife under the legal matrimonial property system is not necessarily the same as the joint debt of husband and wife.Both husband and wife as a whole bear the debt.Therefore,the joint debt of husband and wife should be treated as a distinction.If the debt is based on the family agency right or the common intention of both parties,both parties should bear joint and several liability for the creditor.On the contrary,if the cause of the debt is not the two mentioned above,the basis for bothparties to jointly bear the liability for the debt is the existence of the property co ownership relationship.Therefore,before the marriage relationship is not dissolved,the creditor has the right to claim the liability of repayment to all the property of the debtor and the joint property of the husband and the wife,but it should be noted that the personal property of the party who has not borrowed the debt is not used to repay the debt Liability property.This paper is divided into four parts:The first part: introduction.It mainly introduces the background and significance of the topic,the research content of this paper,the current research status at home and abroad,and so on.The second part: the definition of husband and wife's joint debt.This part mainly introduces the definition,nature,recognition standard of the joint debt of husband and wife,and demonstrates that the joint debt of husband and wife is not equal to the joint debt of husband and wife.Through the introduction of this part,it makes a theoretical foreshadowing for the repayment of the joint debt of husband and wife in China.The third part: the settlement system of husband and wife's joint debt.It mainly combs the legal provisions and judicial interpretation of the rules for the settlement of the joint debt of husband and wife in China,points out the shortcomings,and sums up the academic disputes on the order of the settlement of the joint debt of husband and wife and how the courts at all levels of the relevant cases in the judicial practice of our country judge.The purpose of this part is to explain that there is no clear stipulation on the order of paying off the joint debt of husband and wife in our country from the aspects of legal provisions and judicial interpretation.In practice,various kinds of judgment rules are the practical embodiment of the unclear paying off rules.The fourth part: the payment of the joint debt of husband and wife and the protection of personal bankruptcy.Mainly based on the analysis of the previous part of the article,the paper puts forward suggestions for the improvement of the joint debt repayment of husband and wife.The purpose of this part is to explore the ways to improve the joint debt of husband and wife in China,including legislation,burden of proof,property publicity system,etc.to improve the debt repayment rules,and advocatethe establishment of personal bankruptcy system and bankruptcy exemption system to protect the rights and interests of debtors.