Research On The Rules Of Identifying Joint Debts Between Husband And Wife

The Civil Code establishes rules for the identification of joint debts between husband and wife with the principle of "co-debt and co-signing" as the core.The rules aim to clarify the nature of debts and balance the interests of creditors and non-borrowers between husband and wife,which is of great significance for maintaining market order and family stability.However,in terms of the treatment effect of current judicial practice on issues related to marital joint debt,there are still some problems in practice,such as confusion of identification standards and applicable laws,unbalanced distribution of burden of proof,etc.The above problems are mainly due to the fact that the current marital joint debt identification rules are too vague and general,which cannot achieve the legislative purpose or meet the practical needs.From the perspective of judicial practice,it can be found that judicial practice is faced with a series of difficulties and dilemmas when dealing with issues related to the identification of joint debt between husband and wife through statistics of judgment data of cases concerning joint debt identification between husband and wife in recent years and analysis of typical cases.First of all,there is no basis for determining whether the debt in tort and the debt taken under the state of separation belong to the joint debt of husband and wife.The current rules for the identification of joint debts between husband and wife are mainly applicable to the contract disputes brought by creditors against the borrower between husband and wife or the two spouses,but cannot be applied to the resolution of tort debts or related problems under the state of separation between husband and wife.The application scope of the rules is too narrow or inadequately delayed,which directly leads to the problem of different verdicts of the same case in judicial practice when facing complicated cases.Secondly,in addition to the lack of normative basis for the identification of debts,the specific types of debts and payment methods are not clear,which is difficult to ensure that creditors are fully compensated,and the implementation of the judgment is also faced with greater difficulties.In addition,the present rules of the identification of marital debt completely allocate the burden of proof for the use of the debt in the husband and wife’s life or production and business together to the creditor.The fairness and rationality of the distribution of burden of proof also remain to be discussed.On the basis of clarifying the theoretical basis of the rules for the identification of joint debts between husband and wife,based on the current economic development and the characteristics of family property relations,this paper puts forward the following suggestions to improve the existing problems in judicial practice by referring to foreign legislation.First of all,we should establish the rules for determining the joint debts of husband and wife during the separation period and under the debts in tort.Specifically speaking,on the one hand,we should clarify the criteria for the establishment of separation and the identification criteria for the beginning of separation time.On this basis,we should take "individual debt as the principle,joint debt as the exception" and "intended superior to legal" principle to deal with the identification of joint debt between husband and wife.For the tort debt,in principle,the tort debt should be identified as the joint debt of husband and wife for the idea of "protecting the weak",but the specific liability type and payment order should consider the fault and benefit of both husband and wife.Secondly,in terms of debt types,individual debt,joint debt of husband and wife and joint debt of husband and wife in a narrow sense should be distinguished.Different debt types correspond to the specific scope of liability property.In addition,in order to fully protect the rights and interests of the non-creditor between husband and wife,it should also support their internal recourse and property analysis rights.Finally,on the issue of distribution of burden of proof,on the one hand,we should establish the principle of "internal and external differences" and confirm the subject of burden of proof according to the relationship between the parties.On the other hand,in the dispute between creditors and one or both of the spouses,factors such as the nature of the debt and the close degree of contact between the parties should be taken into account,so as to flexibly adjust the strictness of the burden of proof requirements for creditors.