An Analysis Of The Rules For Determining The Joint Debt Of Husband And Wife

Under the background that the principle of individualism and autonomy of will are fully respected,the identification of joint debts of husband and wife has become a difficult problem in judicial practice.Under the current legal system in China,the rules for the determination and settlement of joint debts of husband and wife are scattered between law and judicial interpretation,and have not been systematically regulated.The gaps and contradictions stipulated by the law lead to confusion in the application of justice.The contradiction between the closeness and privacy of the husband-and-wife relationship and the full respect for the autonomy of the individual is always in a game,clarifying the ownership of the husband and wife's mutual debt,which is beneficial to the interests of the spouse and the interests of the third party.A reasonable balance between them is conducive to the realization of the Marriage Law's purpose of "regulating marriage and family relations and promoting family harmony." Therefore,this paper is aimed at the legal application of the joint debt of the husband and wife in the judicial status quo,the gaps in the relevant laws,the connection between the husband and wife common debt recognition system and other systems of the marriage law,and make some suggestions for the Civil Code.This article has five parts in total.The introduction is mainly about the social necessity,practical necessity and doctrine of the research on the joint debt determination rules of husband and wife.Family is the cell of the society,the marriage is the foundation of family.So the joint debt of the husband and wife is related to thousands of households.But the current legal norms represented by Article 24 of the Judicial Interpretation of Marriage Law(?)and Article 41 of the Marriage Law,however,there are obvious violations.The newly promulgated "Interpretation of the Issues Concerning the Applicable Law Concerning the Trial of Cases Concerning Couples' Debt Disputes" is to standardize the joint debt determination of husband and wife by a new angle,and thus there are also various and diverse theories.This section is devoted to summarizing the problems in practice and then sorting out the relevant doctrines,paving the way for the following normative comments.The second part is the first chapter,which is the definition of the concept of joint debt of husband and wife.After the legal concept of "co-owner's common debt" is defined,the rules for the determination of the joint debt of the husband and wife can be based on the rules.The main content of the first chapter is that the connotation of the joint debt of the husband and wife does not include the statutory debt.The object of the legal norm group norm of the joint debt of the husband and wife should be the intended debt;the joint debt of the husband and wife should not be a joint debt in the nature form;The identification of the joint debt of the husband and wife and the settlement of the joint debt of the husband and wife are two levels of problems.Once the two are confused in the interpretation of the law or the judgment,it will lead to the vagueness and attribution of the basic concept of the joint debt of the husband and wife.The third part is the second chapter,which is the review of the joint debt determination rules of husband and wife in China's law and theory.First of all,in the legal system of our country,the key articles include Article 41 of the Marriage Law to determine the "skopos theory",that is,whether the debt is used for the joint living of the husband and wife as the standard for measuring the debt attribution;"Judicial Interpretation(?)" Article 24 determines the "resumptive theory",that is,as long as it is the duration of the relationship between husband and wife,even if the debt of one party in the name of the individual is presumed to be the joint debt of the husband and wife;the "Interpretation of the debt dispute between husband and wife" is stipulated from other angles.These three laws are the key norms of this paper's analysis,and this article will make a lack of review.Secondly,there are many theories in China's academic circles on the rules for the determination of joint debts of husband and wife,including the three rules of "presumption of purpose","standards of desirability" and "standards of presumption of benefit sharing";"rules of use for common life" and "consent by both parties" The four rules of the "rules of agreement","the presumption of the authority of family agents" and the "presumption rule of the time of borrowing during marriage",in this regard,this article will find its essence from the rules of each name,make corresponding comparisons and criticisms.The fourth part is the third chapter,the improvement of the common debt recognition rules in our national law.First,the husband and wife joint debt determination rules must be properly linked to other systems in the Marriage Law.The husband and wife property system and the daily family representation system are two important systems in the Marriage Law,and they are inseparable from the husband and wife joint debt determination rules.Under the marital property system,the husband and wife joint debt determination rules are derived instead of the daily family representation system.Second,there is a need for improvement in both legislative and judicial practice.In the forthcoming Civil Code,the rules for the determination of joint debts of husband and wife should be improved accordingly.At the same time,a special activity such as joint investment by husband and wife should be separately regulated in the Civil Code,so as to make a balance to other laws and regulations;in judicial practice,it is more important to pay attention to the flexible and reasonable interpretation of the norms,and the mechanical application of the law is a derogation of the vitality of the regulations.The fifth part is the conclusion,which is a summary of the common debt types of the couple under the joint debt determination rules.At the same time,it is proposed that the judgment of the husband and wife joint debt determination should be turned to objective standards.