| Article 41 of the Marriage Law of the People's Republic of China shall identify matrimonial debt as for living together.In order to avoid the phenomenon of false divorce and true evasion of debts,the Supreme People's Court issued article 24 of Interpretation of the Supreme People's Court on Certain Issues Concerning the Application of the Marriage Law of the People's Republic of China(II),which presumes the debts during the marriage as matrimonial debt.Article 24 of Interpretation of the Supreme People's Court on Certain Issues Concerning the Application of the Marriage Law of the People's Republic of China(II)while effectively protecting the interests of the creditor,harms the interests of the debtor's spouse,which is contrary to the substantive justice requirement of the law.Then,the Supreme People's Court issued Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Hearing of Cases Involving Matrimonial Debt-related Disputes in 2018.Interpretation [2018] No.2 introduces the principle of joint debt and joint signature,dividing matrimonial debt into two categories:matrimonial debt that meets the daily needs of the family and matrimonial debt that exceeds the daily needs of the family.Interpretation [2018] No.2reasonably distributes the burden of proof,taking into account the interests of both the creditor and the debtor's spouse.At the same time,matrimonial debt recognition rulesestablished by Interpretation [2018] No.2 have been absorbed into the draft of Civil Code.Interpretation [2018] No.2 established the rules for the recognition of matrimonial debt,while making some progress,there are still deficiencies.How to define the scope of different kinds of matrimonial debt and how to define the legal consequences of various kinds of matrimonial debt are still difficult problems in judicial practice.The solution of these problems is conducive to the accurate application of Interpretation [2018] No.2 in judicial practice,so as to ensure the realization of law predictability and improve the authority of justice.The paper is divided into three parts: the selection of rules for the recognition of matrimonial debt,the recognition of the scope of matrimonial debt and the the legal consequences of matrimonial debt.The first part sorts out scholars' arguments on the rules for the recognition of matrimonial debt,explains the connotation of rules for living together and rules for the presumption of time,and points out the irrationality of these two rules.On this basis,the Supreme People's Court issued Interpretation [2018] No.2.Interpretation[2018] No.2 takes into account the interests of the debtor's spouse and the creditor,reasonably distributes the burden of proof,and guides people's behavior through the principle of co-signing of debts.At the same time,there are two main problems in the application of Interpretation [2018] No.2.Firstly,it is difficult to define the scope of meeting the daily needs of the family.Secondly,the legal consequences of matrimonial debt need to be clarified.In the second part,housekeeping agency is the boundary,matrimonial debt is divided into two categories: matrimonial debt to meet the needs of daily life of the family and matrimonial debt beyond the needs of daily life of the family.Matrimonial debt to meet the daily needs of the family is based on the right to housekeeping agency,which needs to follow objective criteria and meet the appropriateness requirements,while excluding transactions that determine or change the living conditions of the family and its members from the scope of the family's daily needs.There are two kinds of matrimonial debt beyond the daily needs of the family,that is,matrimonial debt that both husband and wife agree to bear and matrimonial debt used for the joint production,operation and living together.Matrimonial debt that both husband and wife agree to bear is in accordance with the general principle of autonomy of private law.It needs husband and wife both have declaration of will that borrows debt jointly,assume debt jointly.Matrimonial debt used for joint production and management shall be defined as actual participation in production and management,and the connotation of joint life shall be defined as family interest.The third part is to clarify the legal consequences of matrimonial debt.In this part,based on the analysis of the legal consequences of matrimonial debt and the basis of the current law,the author puts forward some suggestions on the specific path of the rules of Matrimonial debt repayment.Matrimonial debt which meet the needs of daily life of the family and which are produced by the mutual agreement of the husband and wife accord with the theoretical basis of joint responsibility.Accordingly,these two kinds of matrimonial debt can ask husband and wife both sides assumes joint responsibility.The debt that the husband and wife bear in the name of the individual,which is beyond the daily life of the family,is used for joint production,operation and living together,is based on the joint system of married income,and the creditor can only ask the debtor's spouse to assume limited liability within the limit of the couple's joint property. |
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