Research On Recognition Rule Of Marital Joint Debt

The new interpretation of marital debt disputes has established several types of marital joint debt and established new rules for the recognition of marital joint debt.Since the implementation of the new interpretation,it has been effective in protecting the interests of creditors and the interests of the non-debtor spouse.However,a series of problems have appeared in the judicial practice of the constitutive elements of various types of debt in the new interpretation,such as the contradiction between abstract legal concepts and complex social life facts,and the application of legal concepts and rules must be interpreted by judges.The interpretation of legal concepts has different application effects in judicial practice,and the interpretation of the constitutive elements of the rules for the recognition of marital joint debt has resulted in different judgments of similar cases.Based on the research method of empirical analysis,the first chapter classifies and analyzes the cases according to all the judicial documents heard by the Supreme People’s Court since the implementation of the new interpretation in 2018 retrieved from China Judicial Documents Website.First of all,the cases are classified according to the cause of action and the characteristics of marital joint debt cases are summarized.The number of marital joint debt cases is large.Secondly,according to the analysis of the case,summarize the problems in judicial practice.The identification standard of consensual joint debt is vague,especially for the signing behavior with the intention of borrowing or the behavior without clear indication of liability whether it is enough to constitute ratification.It is difficult to determine whether the debt involved in the joint debt of husband and wife based on the agency of daily family affairs belongs to the category of daily family life.In practice,there are different standards and it is difficult to identify the debt of joint production and life of husband and wife.In addition,the legislative development of the recognition rules of marital joint debt and the theoretical basis of the recognition rules are discussed.The recognition rules stipulated in substantive law have experienced three stages of development: one is the standard of common living of husband and wife;Second,time presumption standard;Third,the "joint debt signing" standard.Its theoretical basis has also experienced from the time presumption standard of the couple’s property common ownership theory to the existing will to express the core of the "joint debt signing" and ratification standards,couples daily domestic agency and other standards of legal behavior theory.Chapter two,Chapter three and chapter four respectively discuss the constitutive elements of the recognition of different types of marital joint debt.First,for consensual marital joint debt,the "joint debt signing" and the standard of post-ratification are discussed with the expression of will as the core,and cases in judicial practice are combined.Express expression of will is not controversial in judicial practice,but implied expression of will should clarify whether the non-debtor has the true intention of borrowing,and pure silence is effective in legal situations.Second,for the common debt of husband and wife arising from the agency of daily family affairs,the "use" standard is adopted to limit the application of the "amount" standard.Third,the "use" and "benefit" standards are adopted for debts beyond the scope of the above-mentioned types but used for the joint production and life of the husband and wife.Germany,France and Switzerland have made specific provisions on the connotation of daily family affairs agency..Chapter five is the judicial application of marital joint debt.The determination of consensual marital joint debt should focus on the expression of will.The determination of joint debt of husband and wife based on daily household agency should limit the application of "amount" standard,expand the application of "utility standard",examine the substantial use of the debt involved in the case,and draw lessons from the "appropriateness" standard,so that the use of the debt involved in the case should match the living standard of the family.For debts beyond the aforementioned scope but used for the joint production and life of the husband and wife,it shall combine the "common interest" standard with the "joint participation" standard on the basis of examining the purpose of the debts involved in the case.