Research On The Procedural Problems In The Determination Of The Couple’s Joint Debt

In January 2018,the supreme people’s court issued the interpretation on the issues related to the application of law in the trial of cases involving marital joint debt disputes,which has relatively accurate definition of the entity identification standard of marital joint debt and changed the burden of proof distribution in the identification of marital joint debt disputes.The nature of the debts of husband and wife’s joint debts is "common debts".Accordingly,in the litigation cases concerning the determination of the debts of husband and wife’s joint debts,the litigation form should be the inherent and necessary joint litigation.In a case involving a dispute over the debt of a couple,it is often necessary to confirm the nature of the debt before deciding how to list the defendant.Since it is necessary for the husband and wife to file a lawsuit against their joint debts,both parties of the husband and the wife should act as the joint plaintiff or the joint defendant.In the loan contract that borrows money in the name of one party of husband and wife,if the purpose that borrows money is used for husband and wife or family to live together,this debt is debt of husband and wife jointly,the lawsuit that brings should list husband and wife as joint defendant,the person of party is qualified.Therefore,when the creditor sues only the nominal debtor,the defendant may not be eligible for litigation.In this case,if the creditor only sues the nominal debtor based on the principle of relativity of contract,the court has the obligation to explain to both parties when it finds that it may involve in the determination of the couple’s joint debt in the process of hearing,and the other party of the couple who is not involved in the lawsuit is the co-defendant.If the other party of the couple fails to participate in the proceedings due to the insufficient performance of the court’s obligations,the judgment shall not be extended to the other party of the couple and the additional debtor’s spouse shall not be forced to be the subject of execution.In practice when the husband and wife one party borrows money the dispute is below the circumstance that the party does not qualify completes entity adjudication,after making effective judgment,how to execute effective adjudication document? In judicial practice,there are three common handling modes: the additional debtor’s spouse is thesubject of execution,the creditor has another lawsuit,and the execution procedure is followed after the retrial procedure confirms the nature of the debt.These three modes all have their own defects that are difficult to evade: the mode of directly adding debtor’s spouse as the subject of execution has no legal basis,is a violation of the principle of "separation of adjudication",and seriously damages the legal rights and interests of debtor’s spouse.Although the creditor’s separate litigation can be solved and ensure the procedural rights of all parties,it has some defects,such as seriously affecting the execution efficiency,increasing the burden of the creditor’s litigation and so on,and at the same time there is the risk of duplicate litigation.Although the retrial mode is in line with the requirements of procedural justice,it is not suitable to be carried out widely due to its supplementary remedy and strict application standards.Therefore,it is more effective to control this from the source,expand the interpretation responsibility of the judge,strengthen the examination of the suitability of the parties in the litigation stage,and protect the procedural interests of the spouse of the person subjected to execution from illegal infringement.Secondly,in the execution,the execution principle that the debtor’s spouse shall not be directly added to the execution without due process guarantee is made clear.At the same time,the statutory circumstances that can be added to provide a clear legal basis for the executive judge.