Research On The Rules Of Joint Debt Between Husband And Wife In Civil Code

The problem of husband and wife’s joint debt is related to both husband and wife’s identity and property relationship,also related to the provisions in the field of marriage and family as well as the provisions of general creditor’s rights and debts,the proper solution of the problem is related to the interests of both non-obligors and creditors,which shows the complexity and importance of the problem.However,it seems that the issue has not been properly resolved before the promulgation of Civil Code of the People’s Republic of China(hereinafter referred to as the civil code),it can be seen from the difficulties in judicial adjudication and the inconsistent results of judgments..China’s legislations and judicial interpretations have been trying to establish systematic and perfect rules for determining and paying off the joint debt between husband and wife,in response to new problems in practice,a number of judicial interpretations and some notifications and opinions have been issued one after another,however,the effect of these "patching" rules seem not satisfactory in practice,especially the Article 24 of Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of the Marriage Law of the People’s Republic of China(Ⅱ)(hereinafter referred to as the interpretation of the marriage law(Ⅱ))directly presumes that the debt is the joint debt of the husband and wife according to the existence of the marriage relationship,which is excessively biased towards the creditor,and sets up a strict burden of proof to the contrary for the non debtor,which makes many non debtors bear debts for no reason in practice and damage their interests,which has been criticized by the academic and practical circles.In 2018,the Supreme People’s Court issued Interpretation of the Supreme People’s Court on Issues concerning the Application of Law in the Trial of Cases Involving Marital Debt Disputes(hereinafter referred to as the interpretation of marital debt),which established the rules for the recognition of marital joint debt based on the theory of marital agreement,daily family agency and use,article 1064 of the civil code continues these provisions,the unified rules for the recognition of the joint debts of husband and wife are formally established in the civil code,which not only ends the confusion of the previous rules for the recognition of husband and wife’s joint debts,but also provides a clear basis for the judge to hear the case.At the same time,article 1089 of the civil code establishes the settlement rules of the joint debts of husband and wife,and stipulates the settlement of the joint debts of husband and wife in divorce.The code mainly uses two pieces of legislation to establish the rules of the joint debts of husband and wife.In order to ensure the correct application of the law and give full play to its due role,it is of great practical significance to correctly understand the rules of joint debt between husband and wife established in the civil code.The common debt rules of husband and wife in the civil code are mainly embodied in article 1064 and article 1089,the new rules are not created without foundation,but the product of discarding the previous common debt rules of husband and wife and perfecting them.In order to make the research object more specific,it is necessary to analyze the meaning and legislative background of the common debt rules of husband and wife in the civil code,so as to have a clearer understanding of them.The recognition rules of marital joint debt established in the civil code mainly determine whether the debt belongs to the marital joint debt from the marital agreement,daily family agency right and the use of debt,at the same time,it is supplemented by the dual distribution system of the burden of proof to balance the interests of creditor and non debtor,which are more specific and reasonable than before;The rules of joint debt settlement between husband and wife are almost the same as the previous rules of joint debt settlement between husband and wife,which only makes the principle that the joint debts of husband and wife should be paid in priority by the joint property of husband and wife.The new recognition rules of joint debt of husband and wife take the theory of juristic act as its legal principle,and the settlement rules of joint debt of husband and wife are based on the nature of joint debt of husband and wife,but the nature have not been clearly defined because the rules are not clear.The rules of joint debt of husband and wife in civil code are not perfect,there are some shortcomings in the recognition rules of husband and wife’s joint debt,such as unclear definition of relevant concepts,unscientific burden of proof;the scope of application of the liquidation rules is limited,and there are blanks in the scope of property liability,the basis of court judgement and the mechanism of recovery and relief after the event.We should further clarify the relevant concepts,reduce the application difficulties caused by vague concepts,reasonably allocate the burden of proof,and balance the interests of the parties to a greater extent,and we should improve the rules of joint debt settlement,form a perfect system of joint debt confirmation and settlement,properly and thoroughly solve the disputes of joint debt between husband and wife,and safeguard the interests of all parties.