Research On The Determination Rules Of Joint Debt Of Husband And Wife In My Country

Since the reform and opening up,under the background of socialist market economy,the changes of people's life,production and management mode,and the increase of material wealth are reflected in the field of marriage and family,that is to say,how to identify the joint debt of husband and wife is one of the complicated and difficult problems in judicial practice.For this reason,the new judicial interpretation issued by the Supreme People 's Court in 2018 has to a certain extent settled the disputes brought about by Article 24 of the second judicial interpretation of the marriage law;on the basis of the first draft of the first draft of the 2018 civil code,the second draft of the sub draft of the 2019 civil code absorbed the relevant provisions of the new judicial interpretation in article 840-1;Article 1064 of the third draft of the sub draft of the 2019 civil code The content of the second review draft of the civil code is used.Due to the general provisions of the draft,it is still necessary to summarize the experience and lessons in judicial practice,refine the specific recognition standards of the joint debt of husband and wife,so as to unify the national court's judgment standards on similar issues,and provide reference for the exercise of the discretion of family judges.Therefore,it is of great theoretical and practical significance to study this topic when the civil code is formulated.This paper is divided into five parts.First of all,this paper analyzes the value orientation of the recognition rules of husband and wife's joint debt in China,based on the theories of transaction security protection and legal interest protection balance,starting from the main contents of the recognition rules of husband and wife's joint debt in China,including autonomy of will,purpose of debt,presumption of debt occurrence time,presumption of proof,and the main characteristics of identity,history and complexity This paper discusses the basic theory of the recognition rules of husband and wife's joint debt from the perspective of multiple value orientation.Secondly,it points out the legislative and judicial status quo of the recognition rules of husband and wife's joint debt in China: in legislation,the content of new judicial interpretation is gradually recognized in the process of civil code compilation;in judicature,since the implementation of the new judicial interpretation,the number of cases of husband and wife's debt disputes has decreased,the withdrawal rate has increased and the judicial credibility has been promoted by correcting the wrong cases.It is analyzed that there is a lack of the basic concept of husband and wife's joint debt in the recognition rules of husband and wife's joint debt in China,the scope of family's daily life needs,husband and wife's joint life,husband and wife's joint production and operation,and the principle of joint debt signing are not clear,and the recognition of husband and wife's joint debt in litigation has been emphasized for a long time,while the recognition of debt during the normal life of husband and wife's relationship has been ignored,the supporting system is not perfect and It leads to difficulties in judicial application.Thirdly,it is necessary to explain that the recognition rules of the joint debt of husband and wife come into the civil code because of the systematization of the husband and wife property system and the urgent need of the judicial practice.The recognition rules of the joint debt of husband and wife in our country are feasible,and the practice proves that the current rules are suitable for the trial needs of the complicated and changeable judicial practice in our country It also demonstrates the rationality of the second review draft of the civil code in 2019 and the third review draft of the civil code in 2019 absorbing the 2018 interpretation 2.Fourthly,through the investigation of the legislative provisions of Japan,Germany,France,Italy,Switzerland and other major statutory countries as well as the United States property law,we can get the enlightenment that the recognition rules of joint debt of husband and wife can not adjust the property relationship of husband and wife independently without the property system of husband and wife.Therefore,the property system of husband and wife should be systematized In order to enable the judge to better handle the complex property relationship between husband and wife,the recognition standard of joint debt of husband and wife should be specific and systematic.Fifthly,in view of the problems existing in the recognition rules of husband and wife's joint debt in China,the following suggestions are put forward to improve the problem: to define the scope of husband and wife's joint debt;to refine the recognition standards of the basic concepts such as husband and wife's joint debt,family daily life needs,husband and wife's joint life,husband and wife's joint production and operation,and the principle of joint debt signing;to stipulate the property system during the existence period of husband and wife's relationship in non litigation It is different from the common debt of husband and wife under the legal property system.We should deal with it separately and establish the corresponding recognition standard and objection handling debt procedure.We should solve the difficulties in judicial application by combining civil liability with criminal punishment and integrating it into the social integrity system.