Research On Judicial Determination Of Joint Debt Of Husband And Wife

The Civil Code has established the identification standard of joint debt of husband and wife with ’ consensus theory ’ as the core and ’ use theory ’ as the supplement.In addition,the burden of proof is reasonably distributed and the interests of all parties are balanced.The standard for determining the common debt of husband and wife in the Civil Code is clear,but from the perspective of judicial practice,there is a problem of different judgment scales in similar cases.The author mainly takes the implementation of the Civil Code as the starting point,through the collection and analysis of private lending disputes involving the identification of husband and wife ’ s common debt,supplemented by the interpretation of relevant laws and judicial interpretations and other local legal documents,summarizes the difficulties in the current judicial practice,and puts forward suggestions for the improvement of the judicial identification of husband and wife ’ s common debt,in order to play a better positive effect,balance the interests of all parties,and promote social stability and healthy operation.In addition to the introduction and conclusion,this thesis is divided into four parts.The first part is an introduction to the common debt of husband and wife,including the meaning and characteristics of the common debt of husband and wife,the balance of interests considered in the determination of the common debt of husband and wife,and the standard changes of the determination of the common debt of husband and wife through relevant laws and judicial interpretations.The second part is the problems existing in the determination of the joint debt between husband and wife from the perspective of justice.Through the reading of 200 relevant cases,it is found that the problems existing in the determination of the joint debt between husband and wife in the current judicial practice include two parts,one is the problems in fact-finding,and the other is the problems in the requirements of the creditor ’ s duty of care when making loans.The third part is the analysis of the difficulties in the judicial cognizance of the joint debt of husband and wife,this part is the analysis of the difficulties behind the fact-finding in the judicial practice,including the analysis of the complexity of the common will of husband and wife,the analysis of the abstract nature of production and operation,the analysis of the fuzziness of the daily family agency,these three parts are the difficulties of judicial cognizance.The fourth part is the suggestions for the improvement of the judicial determination of the common debt of husband and wife.In view of the problems in the current judicial practice,it is improved from the following four aspects,including the unification of the standard for the determination of the common meaning of husband and wife,the unification of the standard for the determination of the common debt of production and operation,the improvement of the daily household agency,and the reasonable definition of the creditor ’ s duty of care.