A Study On The Recognition And Satisfaction Of The External Tort Debt Of One Of The Spouses ——Focusing On The Recognition

There are no clear provisions on the identification and settlement rules of one husband and wife’s external tort debt in China.Through the sorting of the identification cases of the nature of one husband and wife’s external tort debt in judicial practice,it is precisely due to the unclear and lack of relevant systems that "there are different views on whether the tort debt is applicable to the identification rules of husband and wife’s joint debt","confusion of identification standards","different distribution of burden of proof" and other phenomena.At the same time,the debate in the academic circles has not provided clear road guidance for the relevant issues in its judicial practice.In order to promote the understanding,application and improvement of article 1064 of the civil code,the author believes that in judicial practice,the debt of one husband and wife’s external infringement can be included in the recognition system of husband and wife’s debt.In terms of legislative improvement,by further clarifying that the basic activities of one husband and wife’s infringement are the recognition standards of "living together,producing and operating together for husband and wife" and "expression of intention to raise debt together",The burden of proof is allocated to the spouse of the infringer and the burden of proof of "expression of intention to raise debt together" is still allocated to the creditor,which is different from the burden of proof.As far as the settlement rules are concerned,it distinguishes the settlement rules of individual debt and the settlement rules of husband and wife joint debt.On the premise of considering the value balance of marriage protection and creditor interest protection,it is considered that the personal property of the debtor’s spouse should not be included in the scope of liability property.Even if the infringing debt is recognized as husband and wife joint debt,the infringer’s spouse also bears limited joint and several liability within the scope of husband and wife joint property.From the perspective of civil execution,whether the tort debt is recognized as husband and wife’s joint debt or individual debt,the order of repayment should not be set when enforcing the joint property.When it is recognized as joint debt of husband and wife,due to the imputability of tort,its spouse should be given the right of recovery to balance the interests of the infringer’s spouse and the victim.When it is recognized as a personal debt,it can directly execute half of the infringer’s personal property and common property without analyzing the property first.Therefore,a complete set of rules will be formed for the determination of the foreign tort debt of the husband or wife and the settlement of the settlement problem.