| In 2018,The Supreme People’s Court issued the interpretation on several issues concerning the application of the law in the trial of cases involving community debts of spouses’ disputes(hereinafter referred to as the [2018] No.2 interpretation),The civil code continues this interpretation and identifies the debt used for "joint production and operation" as the marital common debts.However,there are different views on the identification of the debt used for "joint production and operation",the nature of the debt for joint production and operation,as well as the scope of liability property in practice and theory.In this context,by combing the relevant cases after the promulgation of the [2018] No.2 interpretation,this paper studies the academic controversy about how to identify jointly operating debts of spouses and analyzes the theoretical basis for identifying one party’s operating debt as the marital common debts.The paper is divided into four chapters:The first chapter is about the legislation and judicial status of joint operating debts of spouses.The author summarizes the relevant legal provisions and judicial interpretation of marital common debts and joint operating debts of spouses involved in the evolution of Chinese legislation.After sorting out the cases of production and operation debts of spouses after 2018,it is concluded that there is an issue that the identification standard of "joint production and operation" debts is not unified in China’s judicial practice.The second chapter analyzes the theoretical basis of the identification of marital common debts and joint operating debts of spouses."Joint production and operation debts" is a kind of marital common debts,and there must be sufficient reasons to identify the debt of one party in his own name as marital common debt.Based on the analysis of the theoretical basis about the identification of marital common debts,the paper concludes: most of the joint operating debts do not fall into the scope of the right to housekeeping agency;a "consensual" debt should be a consensus for borrowing rather than a consensus for joint operations;there is a superficial consensus making the third party believe that the debt has gained consensus from both the husband and wife;the current ownership system states that the property acquired after marriage is shared by the husband and wife.Therefore,the couple forms an economic community with "shared benefits and shared risks."Based on the second chapter,the third chapter studies the identification standards of"joint production and operation".The debts of husband and wife’s joint production and operation are divided into "consensual debts” and "interest-sharing debts".This paper analyzes the identification of substantial consensus and apparent consensus in"consensual debts ": pointing out that knowing is not equal to agreeing;even though the superficial consensus is different from the apparent agency,it can refer to the identification rules of the apparent agency.At the same time,the chapter analyzes controversial issues such as the scope of interest,and the timing of interest judgment.The paper argues that common interests should be definite interests.An interest should not be determined ex-post based on a debt occurance,but also an operation.In addition,the theory of interest balance should be applied.It is necessary to consider factors such as the degree of benefit and the ratio of borrowing to profit.Based on the"deemed no marriage principle",a fair determination of the creditor and the other spouse will not over-protect the creditor,nor will it be bad for the creditor due to the debtor’s married status.The fourth chapter clarifies the nature of the debts of joint operating debts of spouses and the scope of liability property.The chapter discusses the rationality and necessity of distinguishing "joint and several debts",and "joint debts" between joint operating debts of spouses.It is considered that the "consensual" couples’ operational debts are "joint and several debts",and the "interest-sharing" couples’ operational debts are "joint debts".Consider the theoretical basis for the determination of joint operating debts of spouses,the paper concludes that the scope of liability property of "joint debt" includes the joint property of husband and wife,as well as the personal property of the borrower.The scope does not include the personal property of the spouse of a non-debtor. |
