Legislative Research On The Debts Incurred During The Separation Of Husbands And Wives In My Country

With the development of social economy and the change of people's view of marriage and love,the phenomenon of a large number of couples separated in marriage and family has become a prominent social problem.According to Chinese current "marriage law","the couple separated for more than two years because of emotional discord"is one of the legal cases as judging "couples have indeed broken" standards.But the legislation did not distinguish between the rights and obligations of the two different periods,that one is during the period of existing marriage and the other is under special conditions.The rules of recognizing the debts during the period of existing marriage are used to adjust the rights and obligations of the debts borning in the period of spousal separation,ignoring the objective changes brought about by the crisis of the relationship of husband and wife.This not only violates the principle of fairness,but also damages the legitimate interests of the non debt side whom is not informed of the debt.From the perspective of substantive law and procedural law,this paper analyzes the legislative problem in the settlement of the debt generating during the period of spousal separation in China.In reference to the beneficial experience in dealing with similar problems in France,Germany and China's Taiwan region,this article puts forward some suggestion to perfect relevant legislation in our country,in order to achieve the purpose that protect the interests of both spouses,as well as the interests of creditor.In addition to the introduction,the article is divided into four parts:In the firth part,the concept and characteristics of the debt arising from the spousal separation is described Define the debt arising from the spousal separation by the main elements,the time elements,the content elements,and analyze its characteristics.In the second part,the auther analyzes the legislative issues of the debt dispute during the spousal separation in our country.In this section,the author mainly describe four problems that the judging standards of the nature of the debt is not uniform,the distribution of the burden of proof is not reasonable,the separation fact is difficult to be identified,and daily chores agency system is not clear.In the third part,the auther introduces the foreign legislation on the recognition of the debt of the couple during the separation period and its enlightenment to our country's legislation.the introduction and Enlightenment of the foreign legislation on the recognition of the debt in the period of spousal separation.In this part,the auther summarizes and analyzes the marital property system as well as the law of identifing the debt of the couple separated in France,Germany and China's Taiwan region,providing a reference for some suggestion to perfect relevant legislation in our country.The fourth part are some suggestions on perfecting the identification of debts in the period of of spousal separation.First,the auther puts forward the legislative principle of dealing with the cognizance of the debt in the period of spousal separation.Second,it proposes to perfect the system design of recognizing the debts in the period of spousal separation,such as clarifing the definition of separation,perfecting daily chores agency system,clearing the nature of debt during the spousal separation period,reasonable distribution of burden of proof.