Study On The Rules For Determining Joint Debts Of Spouses From The Perspective Of The Civil Code

With the promulgation of the Civil Code of the People’s Republic of China（hereinafter referred to as the "Civil Code"）,there is greater public recognition of the role of civil law in maintaining fairness and order and guiding the way of conduct.The updating of the provisions on the determination of joint matrimonial debts is one of the highlights of the Civil Code’s Marriage and Family section.In recent years,the issue of the determination of joint matrimonial debts has frequently arisen in lending disputes,and the determination of joint matrimonial debts is related to the balance between the security of transactions and the stability of marriage and family.In this context,it is of practical significance to further discuss and study the determination of joint debts of husband and wife.China’s legislation and judiciary have repeatedly regulated the recognition of joint debts of husband and wife,and with social progress and economic development,it is still being improved.Article 1064 of the Civil Code restates the provisions of the"Interpretation of Issues Relating to the Application of Law in Hearing Cases Involving Disputes on the Debts of Husband and Wife"（hereinafter referred to as the "2018 Interpretation of Disputes on the Debts of Husband and Wife"）,which determines that debts with joint signatures of both spouses are joint debts of husband and wife(hereinafter referred to as "joint debts and joint signatures（hereinafter referred to as "joint debt and joint signature"）.This provision makes the identification of joint debts of husband and wife more specific,but has not yet introduced more detailed rules for the identification of various types of joint debts of husband and wife,resulting in the change of rules in judicial practice.With the "common debt signed" clause,the tendency to identify joint debts of husband and wife on the basis of common intention has become more and more prominent.The theory of common property and common debt is no longer able to meet the needs of the determination of the joint debt of husband and wife,and faces many problems in practice.In the era of the Civil Code,the legal act theory is more in line with the trend of identifying joint debts of husband and wife,and is also more suitable for the system of the Civil Code.This topic will be guided by the legal act theory to distinguish the types of joint debts of husband and wife,and then discuss how each type of joint debts of husband and wife should be determined in judicial practice.The first part analyses the existing dilemma of joint matrimonial debts.On the basis of the typological distinction between the recognition of joint debts of husband and wife,the confusion and misunderstanding of the various types of joint debts in judicial practice are discussed by way of case studies.It is found that there is a problem of doubtful validity of the joint signature of joint debts;there is a problem of unclear meaning in the express and implied recognition of joint debts;and there is a problem of insufficient refinement of the rules of recognition of joint living debts and joint business debts.The second part discusses the theoretical basis for the recognition of joint debts of husband and wife.The doctrine of the presumption of joint property and joint debts is a theory of presumption of the determination of joint debts from the common property system of husband and wife.In the course of several updates of the rules on the determination of joint debts of spouses,the presumption of joint property and joint debts has gradually revealed problems and failed to meet the requirements of the systematization of the Civil Code.In its place,the legal act theory is rooted in the civil legal act,and is based on the existence of a legally meaningful joint intention of the spouses in the debt to determine whether it is a joint debt.The legal act theory is more in line with the realistic needs of the identification of joint debts of husband and wife,and is also in line with the system of the Civil Code.The third part analyses how the various types of joint debts of husband and wife should be recognised in the light of the legal act theory,and attempts to resolve the dilemma raised in the first part.Under the guidance of the legal act theory,the act of signing on behalf of a joint debt should be combined with whether the signing on behalf of a joint debt has a common intention to determine whether the debt is a joint debt of the spouses;the express implication in the retrospective debt should be combined with the transaction habits and agreement to determine whether there is a common intention;the joint living debt and the joint business debt should be refined,and the necessary elements should be set up to determine whether there is a common intention through these elements.The necessary elements should be set up to determine whether there is a joint intention of the spouses through these elements,so as to determine whether the debt is a joint debt of the spouses.The fourth part,in conjunction with the preceding discussion,puts forward relevant suggestions on the current legal application of the recognition of joint debts of husband and wife.On the one hand,it is suggested that the single mode of proof should be broken down and the burden of proof should be flexibly adjusted to take into account the different characteristics of the debt.In the case of tort debts,the burden of proof should be reversed or other more reasonable ways of allocating the burden of proof;in the case of difficulties in proving the use of the debt,the burden of proof should be allocated to the debtor himself,and the evidence submitted by him should be verified in relation to time and other elements.On the other hand,think in terms of the identification of joint living and joint business debts.In the case of joint living and joint business debts,where there are too many elements to be included in the legal provisions,the "elemental approach" has been introduced to determine these two types of joint matrimonial debts,following the example of "elemental adjudication".Through this method,the court is expected to play a greater role in ascertaining the facts of the case and balancing the rights and responsibilities of the parties.It is also expected that this method will refine the system of determining the joint debts of spouses on the basis of Article 1064 of the Civil Code,so as to achieve a more reasonable and fair determination of the joint debts of spouses living together and operating together.