Research On The Recognition And Settlement Of Joint Debts Of Joint Production And Operation Type Spouses

The addition of the rule of "joint production and operation" of joint debts of husband and wife,as a highlight of the Interpretation of the Supreme People’s Court on Issues Relating to the Application of Law in Hearing Cases Involving Disputes on Debts of Husband and Wife(Fa Shi [2018] No.2)(hereinafter referred to as the Interpretation of Disputes on Debts of Husband and Wife),has attracted widespread attention as soon as it appeared.It not only enriches the types of joint debts of husband and wife,but also solves the long-standing problem of difficulty in identifying the "external business liabilities of one of the spouses".The Civil Code follows the rules for determining the joint debts of spouses established by the Interpretation of Disputes on Spousal Debts in the form of a basic law.However,the rules of recognition of joint debts of husband and wife stipulated in Article 1064 of the Civil Code are too general and cannot effectively guide judicial practice.For example,in the identification of joint production and operation type joint debts of husband and wife,the legal provisions only use the expression "the creditor can prove that the debt is used for joint production and operation of husband and wife",which cannot accurately clarify the concept and scope of joint production and operation,which results in judicial practice,the joint production and operation type joint debts of husband and wife have inconsistent standards,confusion in the rules of burden of proof,liability for settlement,In judicial practice,the joint production and operation type of common debts have unified standards,confusing rules of proof,and vague responsibility for settlement.The jurisprudence behind is the conflicting choice between private law autonomy and groupism,and between the independent status of the non-borrowing spouse and the protection of transaction security.Against this background,this paper chooses the method of empirical research to focus on the problems in judicial practice,analyze the underlying jurisprudence,and propose countermeasures to solve the dilemma in order to better balance the rights and interests between spouses,as well as between non-borrowing spouses and creditors.In this paper,a mechanical sampling method is used to select 150 sample documents using the legal database of Beihang University as a platform for research.It is found that some courts adopt the "usage-based standard" and some courts adopt the "benefit-sharing standard" in terms of determination criteria;some courts assign the burden of proof to the creditor and some courts assign the burden of proof to the non-creditor spouse.Even in similar cases where the creditor bears the burden of proof,the creditor is also assigned different degrees of proof standards;in terms of liability,some courts hold that both spouses bear unlimited joint and several liability,while others hold that both spouses bear joint liability,and some courts have an ambiguous attitude toward the joint liability of spouses,making it impossible for the reader to accurately determine the specific The reader cannot accurately judge the specific way of liability.By summarizing the above empirical data,the following dilemmas exist in the judicial recognition and settlement of joint production and operation-type joint debts: abuse of the "presumption rule",confusion in the rules of burden of proof,"mutual consent","joint life","joint debt",and "joint liability".The rules of "common life" and "common production and operation" are mixed,the relevant rules and systems of property law are ignored,the distinction and connection between joint and several debts are not reflected,and the rules of settlement are missing.In view of the problems in judicial practice,this paper concludes with some suggestions: to combine the criteria of "presumption and usage theory",to reasonably allocate the burden of proof,to give priority to the application of the "consensual rule",to coordinate the relationship between the rules of joint debt and the related property law system,and to distinguish joint debt from joint and several debts,The paper concludes with the following recommendations: to distinguish between joint and several debts,to explain the rules of settlement,and to strengthen the authority of the court.