On The Execution Of Common Property When The Person Subject To Execution Is One Of The Spouse

In the execution practice of the court,the court often encounters that the person subject to enforcement is only one of the husband or the wife,but the only property under the name of the person subject to execution is the joint property of the husband and wife.As for the legal documents as the basis of implementation,only one of the couple who borrows money is the defendant,and there is no confirmation on whether the debt is a joint debt of the couple.What the executing agency should do in such cases is a major challenge in the absence of very specific legal or judicial interpretation guidance.The solutions adopted by different courts in execution practice are also different.In this paper,based on the author’s actual work,it introduces the real cases,analyzes such situation,hoping to explore a more idealized in theory,and also to facilitate the operation of the executive mechanism of the processing mode.In addition to the introduction and the conclusion,this paper is divided into three parts.The first part introduces the actual cases contacted by the author,and raises questions on what are the usual processing ideas when the person subjected to execution is only one of the husband and wife but needs to execute the joint property of the husband and wife in the daily execution practice of the court,just like the case.The first is not to make any determination of the nature of the debt,but only to strictly comply with the contents of the legal documents,and only to enforce the personal property of the husband and wife as the person subject to execution and their share in the joint property.The second is add the husband or wife that does not borrow money as person of execution,execute their jointly property.The third is to make a presumption of the nature of the debt and then directly determine the execution of the jointly property.In the three thoughts,each method has its own considerations,but all lack favorable legal supports.In the second part,by comparing the cases of the same type,the author discusses and analyzes whether the executioner is one of the husband and wife,and whether the executor is the one who has not borrowed money at the execution stage,and whether the executor can execute the joint property when the nature of the debt is not clear at the trial stage.At the same time,the paper express the view of the author,the author thinks execution phase can not be directly additional debt of one party as the person subjected to execution.But for whether can execute the jointly property of the husband and the wife,the author thinks that although the lack of specific substantive law and procedural law support in theory,but in the consideration of reality practice,from the executing agency staff’s point of view,the implementation of joint property is understandable,and it will be performed by most of the court.In the case that the joint property can be recognized,one of the couple who has not borrowed money must be given full relief right.The author briefly describes the relief mode that can be adopted and discusses its rationality.The third part is the author put forward the assumptions in the case that the executor as one of the spouse,the execution of the joint property.The assumption is based on the actual implementation of the court,we hope to start from the aspects of perfecting the law and building the system,which can not only facilitate the operation of compulsory execution,but also make the execution of the enforcement agency supported by the law,and at the same time protect the substantive rights of the parties.