On The Identification And Settlement Of Marital Joint Debt

The promulgation and implementation of the Civil Code of China have improved the provisions on the joint debt of husband and wife to some extent,but the provisions are limited and the relevant provisions are still relatively general,such as the specific scope of daily family agency and how to realize the payment of the joint debt of husband and wife.The lack of legal provisions has brought difficult problems to the judicial practice,and the judgment results of the courts have been greatly divergent.Scholars have also launched a discussion on these issues.This paper puts forward some suggestions on the problems existing in the marital common debt system in order to provide reference for the improvement of the marital common debt system in China.This paper is divided into six parts.The first part introduces the research background,research significance,research methods,the structure of the article and the difficulties and deficiencies in the writing.The second part introduces and discusses the related problems of the marital common debt system,including the concept and characteristics of the marital common debt.Marital joint debt refers to the debt incurred by both parties for the maintenance of family life,production or business during the marriage relationship or the debt which is not used for family life,production or business,but is formed based on the mutual consent of the husband and wife.The characteristics of marital joint debt are: no personal exclusive property,specific subject,relatively certain purpose of debt and ownership of rights and interests,and joint and several liability.The third part introduces the identification standards in the legislation and judicial practice of marital debt in China,discusses the shortcomings and differences,and introduces the identification problems of special debts.This paper mainly introduces three identification standards,which are "purpose standard","time standard" and "joint debt and joint signing standard".There are mainly the following problems in the recognition standards of marital debt in China: First,the recognition standards are inconsistent.Second,the scope of borrowing is uncertain.Third,the distribution of the burden of proof is not conducive to balancing the interests of creditors and non-borrowers.Fourthly,the identification approach of marital agreement in the "joint debt and joint signing rule" is not clear.The fourth part discusses the problem of the repayment of the joint debt of husband and wife.Specifically including the nature of the husband and wife common debt and repayment rules two parts.In the Civil Code,there are some relevant provisions on the scope of repayment of the joint debt of husband and wife,but the provisions are more principled.This part also discusses how to identify and settle some special debts.The fifth part puts forward some suggestions on the legislation of marital debt in China.First,the order of uniform application of accreditation standards.First according to the "time standard",then according to the "co-debt co-signing rule",and finally apply the "use standard".Second,to improve the specific provisions of the daily family agency,clear "husband and wife living together" and the relationship between the daily family agency and daily family agency as well as the scope of daily family agency.The third is to establish the separation publicity system to ensure the safety of transactions and improve the efficiency of transactions.Fourth,improve the burden of proof distribution system.Allocating the burden of proof to the debtor not only balances the conflicts of interest between the creditor and the non-borrower,but also helps to find out the facts of the case.The fifth is to refine the path of identification by mutual consent of husband and wife.By establishing the consensual presumption system,we can increase the identification path of mutual consent of husband and wife.The sixth is to refine the scope of the liability property of the husband and wife’s common debt and the relevant provisions of the repayment order.The sixth part is the conclusion and prospect.