Research On Judicial Recognition Of "Joint Production And Management Debt Of Husband And Wife"

With regard to the determination of the joint debts of husband and wife,the Civil Code follows the Interpretation of Relevant Issues Concerning the Application of Law in the Trial of Cases Involving Couple Debt Disputes promulgated by the Supreme People’s Court in 2018(hereinafter referred to as the "Interpretation of Law",taking "joint debt signing","daily household needs" and "debt use" as the main criteria for identifying the joint debt of husband and wife.The analysis of the cases related to the couple’s joint debts since the implementation of the Fa Shi [2018] No.2shows that the disputes have decreased,but the disputes have increased sharply,and the disputes mainly focus on the identification of the couple’s operational debts.Through screening and analyzing the "different judgments in the same case" cases related to the determination of marital operational debt after the implementation of Fa Shi [2018] No.2,it is found that the main reasons for the problems are: on the one hand,the application of the determination rules is different due to the unclear legal determination criteria,the wrong understanding of the legal basis of the marital joint debt by the judge,and on the other hand,due to the unclear definition of the relevant legal concepts,and the judge’s free use of evidence,The specific identification factors are different.It is manifested in the following aspects: the concept of "production and operation" is unclear,the effect of "consensual defect" is uncertain,the review standard of "use" is different,and the identification standard of "joint participation" is different.For the problem of different application of the recognition rules,through the analysis of the advantages and disadvantages of the difference recognition rules,it is concluded that the "common debt agreement" is the most core and basic recognition rule,and the "debt use classification" rule should be applied when the true meaning cannot be explored,while the existence of common interests can only be considered as an important factor.For the problem that the specific identification factors are unclear: firstly,the scope of "production and operation" should be clearly defined to avoid confusion with "common life" and "daily needs of family affairs",and the general constituent elements of production and operation should be determined through legislation,while the scope of daily agency of family affairs should be capped from the purpose and appropriateness of means.Second,we should regulate the identification path of "silence" and "unclear expression of will" in combination with the interpretation rules of the Civil Code on the expression of will.While exploring the true intention of the spouse of the non-borrowing party,the protection of the creditor’s reasonable trust should be taken into account.When the spouse of the non-borrowing party has a high degree of imputability for the intentional defect,the "presumption of agreement" should be applied.The third is to reasonably allocate the burden of proof and determine the reasonable "use" examination standard.Because the marriage relationship is internal and hidden,the creditor only needs to prove that the debt is used for the appearance of joint production and operation.In order to avoid the fact that the burden of proof is too light to lead to the "presumption of common debt",the evidence should meet the high probability standard.Fourth,combining the "denial of legal personality system",it is clear that the standard of "joint participation" of limited liability companies is the standard of controlling shareholders.When the spouse is an ordinary shareholder or an operating manager,it can be combined with other factors to analyze whether it has "joint debt agreement";In combination with the "publicity effect of commercial registration" to determine the identification standard of individual industrial and commercial households when they are "inconsistent in appearance and appearance",the industrial and commercial registration should be taken as the principle,and the "actual operation" should be taken as the exception.The proof of "actual operation" should meet the high probability standard.