Research On The Matrimonial Community Debt Identification System

The matrimonial debt system,as a legal system on the adjustment of the negative property of the spouses,focuses on the redistribution of the common interests of the spouses.It not only relates to the interests of the personal interest of each spouse and the interest of the spouses as a whole,but involves the interests of third parties and the society.So,the interests of all parties must be fully balanced to integrate the multi-values of the order of law.Since the promulgation and implementation of the Marriage Law of the People's Republic of China in 1950,the identification of matrimonial community debt has gone through various disputes over the identification rules such as common life rule,consensus rule,time construction rule and rule of use of debts,all of which have both their advantages and disadvantages due to the choice of different legislative values.In particulsr,Article 24 of the Judicial Interpretation of the Marriage Law of the People's Republic of China(II)has caused continuous argument in the society because the excessive preferential treatment given to the creditors and the infringement on the rights and interests of non-borrowing spouses brought by it.On January 18,2018,in response to the confusion brought by that article 24 in relation to the matrimonial community debts,the Supreme People's Court issued the Judicial Interpretation on Matrimonial Community Debt,which pioneered the introduction of the agency system for daily domestic affairs and initially established a more reasonable mechanism for assignment of burden of proof for identifying matrimonial community debts,so,it reflects the relatively high legislative skills.However,compared with the more mature legislative models of foreign countries,the matrimonial community debt system in China is mostly regulated by such “patch methods” as judicial interpretations which are short-term policies and lacking in generality in law,and cannot cover all the types of matrimonial community debts in practice.So,there is much room for legislation in terms of agency right for domestic affairs,assignment of burden of proof,and formulation of settlement rules.Therefore,in the context of codification of the Chinese civil code of marriage and family,it is necessary to explore and perfect the identification system for matrimonial debts.The thesis is divided into three parts.The first part focuses on the legislative evolution of the matrimonial community debt in China and reviews and ponders over the progress and changes in its legislative concepts and ideas.The second part analyzes the practical dilemma facing the community debt of the Chinese couples under the current law: First,the conflict of values has not been fundamentally resolved;second,there is no express agency system for daily domestic affairs;third,there are obstacles for creditors to perform their burden of proof;fourth,the settlement rules are unclear;and,fifth,the identification of statutory debt is missing.The third part is a comparative study of the legislation and characteristics of the matrimonial community debt system in foreign countries to learn useful experience from them.The author try to use the “debt identification-assignment of burden of proof-scope of responsible property” as a clue,puts forward the legislative concept for improving the matrimonial community debt system in China.