Research On The Problem Of Marital Common Property In The Execution Of Personal Debt

Personal debt to perform the husband and wife common property problem belongs to the civil enforcement difficulty it a big problem in a small problem,but to protect the interests of the creditor and the debtor the contradiction between the spouse’s interests protection,as well as the contradiction between economic value and family cultural value,given the significance of the independent research.As for whether personal debt can be executed as the common property of husband and wife,the judicial practice has experienced several swings,and currently stands on the position that it cannot.The opposite sides of the theoretical spectrum are still at odds,and voices from the centre are emerging.To solve this problem,it is not to take one and leave the other,but on the basis of protecting the rights of the debtor’s spouse to maintain family harmony as the bottom line,and allowing the implementation of more economic efficiency under the condition of not violating the bottom line to ensure the realization of creditor’s rights,and now more attention should be paid to the protection of the rights of the debtor’s spouse.In terms of semantic structure,there are two controversial terms in the execution of marital joint property by personal debt,namely,"personal debt" and "marital joint property",which contains disputes about "the nature of the executed debt" and "the scope of the executed property".Through the in-depth analysis of these two key disputes,the two paradigms of the execution of personal debt as joint property of husband and wife are constructed as the distinguishing elements,so as to clarify its connotation and extension.That is,the problem of personal debt execution of husband and wife’s common property is embodied in the identification of personal debt as husband and wife’s common debt and the execution of debt by husband and wife’s common property.Or the personal debt shall be executed by the debtor’s share of the marital joint property.The contention between the two opposing views that marital joint property can be enforced and marital joint property can not be enforced further indicates that on the basis of protecting the rights of the debtor’s spouse and maintaining family harmony,it should be implemented in a more economical and efficient way to ensure the solution of the marital joint property problem of personal debt execution.Current our country personal debt to perform three aspects of the problems existing in the common property of husband and wife,that is executed in debt has entity in identifying and constructive debate,enforce the property share that husband and wife share common property and personal property remains difficult,implementation of the current damage relief procedure is imperfect and compensation mechanism has not yet been established.Through the analysis of the marital community property system of individual debt enforcement in Germany and Japan outside the region,we can find that it is a consensus to attach importance to the protection of the rights of the spouse of the person subject to enforcement.If it is allowed to execute the marital common property in personal debt,it is necessary to minimize the loss and infringement caused to the spouse of the person subject to enforcement as much as possible,and to construct a perfect mechanism of rights relief and protection.Under the guidance of this concept,solve the problem of personal debt perform common property of husband and wife,the jurisdiction shall be introduced to balance the recognition of the value conflict,the establishment of limited principle of division of property and improve the system of execution of property related,and from two aspects of right remedy and entity compensation build double safeguard mechanism of spouse of the person subjected to execution.