A Study On The Connotation Of Husband And Wife’s Joint Debt And Its Judicial Determination

With the rapid development of China’s economy,both husband and wife participate in market economic activities more and more frequently,and there are various ways of dealing with other property,which leads to the complexity and diversification of husband and wife’s external debt.For a long time,there have been heated disputes in judicial practice on the determination of the joint debt of husband and wife.On the one hand,due to the increasing phenomenon that both husband and wife conspire and use fake divorce to evade debts,the Supreme People’s Court issued the judicial interpretation of marriage law(2)to deal with it;on the other hand,because Article 24 of the judicial interpretation of marriage law(2)excessively protects the interests of creditors,in reality,more and more husband and wife collude with outsiders,damaging the legal rights of spouses Benefits.In order to change the current situation of judicial determination,on January 18,2018,the interpretation of the Supreme People’s Court on issues related to the application of law in the trial of cases involving marital debt disputes(hereinafter referred to as "fsz [2018] No.2")was implemented.Recent practice shows that although the interpretation is based on balancing the interests of creditors and spouses,it has made detailed provisions on the formation of the consensual debt of husband and wife,the debt of family daily life and the debt of joint production and operation,the core content of which is absorbed by article 1064 of the latest civil code of the people’s Republic of China(hereinafter referred to as the civil code),so as to solve the problem Judicial practice problems provide the basis,but there are still disputes on the understanding of the connotation of the above provisions in the theoretical and judicial practice circles.Whether its implementation can play a decisive role in the settlement of such cases remains to be tested in theory and practice.Since the implementation of fsz [2018] No.2,the judicial decisions on the joint debt of husband and wife have shown the characteristics of the developed regions,the densely populated regions,and the large number of cases.At the same time,the main difficulties identified by the judicial decisions are the "debt of family daily life" and "debt of joint production and operation" involved in the connotation of the joint debt of husband and wife On the formation of agreement.As far as the determination of "family daily life" is concerned,there are different opinions on the single amount theory,the single purpose theory and the comprehensive consideration theory in the existing judicial decisions,and each case has its own emphasis.According to the theory and legislation,on the single factor level,the amount should be lenient for small amount and strict for large amount;on the purpose,it is more reasonable for the creditor to bear the burden of proof,and it is necessary to distinguish the two purposes of substance and form;on the comprehensive factor level,it is necessary to comprehensively measure many factors,such as the party’s income,feelings,family expenditure and the borrower’s personal hobbies.As far as the identification of "joint production and operation" is concerned,it is most appropriate to classify and establish the corresponding identification standards in view of the differences and differences in the recognition of judicial practice in different nature of business subjects,business income and participation mode.In terms of the determination of "consensual" of debt between husband and wife,in view of the differences of views in the judicial judgment,only on the premise of distinguishing between "express" and "implied" two different consensual ways,and then choosing the corresponding judicial determination standards can make an accurate judgment.In addition,on the system level,the establishment of daily family affairs agency system and the restriction of self admission rules in cases involving joint debt of husband and wife are also effective plans to further improve the legal interpretation [2018] No.2 and its judicial application.