Research On The Application Of Daily Family Agency Rights In The Determination Of Joint Debts Of Husband And Wife

With the increasing prosperity of the market economy,the number of foreign transactions between husband and wife as a marriage community is also increasing.In order to promote the development of the market economy,simplify the conditions required for mutual representation between husband and wife,and safeguard the legitimate rights and interests of both husband and wife and third parties in transactions,Article 1060 of the Civil Code establishes for the first time a system of daily family agency at the legislative level.In this system,both husband and wife act as agents for each other in the external handling of daily family affairs,and within this scope,one of the spouses can independently carry out civil activities in his or her own name,regardless of whether the other party knows and recognizes the act,the effect of the act of agency extends to both parties,and both husband and wife bear joint and several liability for the consequences of the act.However,in the Civil Code and its relevant judicial interpretations,there are relatively simple provisions on the right of daily family agency,and there are no specific provisions on controversial issues that arise in judicial practice,such as the scope of the right to daily family agency,the consequences of abuse of rights,and the allocation of the burden of proof,resulting in excessive discretion of judges in judicial practice,triggering the phenomenon of different judgments in the same case,and affecting judicial fairness.This paper first sorts out the basic theories of the daily family agency system,explores the different theories on its legal nature,and argues that the legal nature of the daily family agency should belong to a special agency system,and it can be treated according to the rules of the agency system when applied.Through the statistics of judicial cases on the Judgment Documents Network,it is found that since the establishment of the daily family agency system,the number of cases related to joint debts of husband and wife has decreased significantly,indicating that the establishment of this system has played a good role.Through the analysis of the typical cases,it is found that there are still problems such as unclear scope of daily family affairs in cases applicable to the determination of joint debts of husband and wife,and the law should list the circumstances that belong to daily family affairs,but due to the complexity of family affairs,all the circumstances cannot be exhausted,then a negative enumeration should be adopted to list the circumstances that are not daily family affairs,and the non-debtor party who is not responsible for joint debts of husband and wife arising from not falling into the scope of daily family affairs is not jointly and severally liable;In addition,the burden of proof is not clearly distributed in the judicial application of the daily family agency right,and because the debtor of the husband and wife has a special status in this type of case,he should bear more burden of proof;Finally,in judicial practice,the period of exercise of daily family agency rights is also relatively vague,and the applicable rules of daily family agency rights for marital relationships in a special period should be typed,holding that couples separated due to emotional discord and men and women after divorce should not enjoy daily family agency rights,while couples separated due to objective circumstances and couples in divorce proceedings and divorce cooling-off periods should restrict the use of daily family agency rights,for debts arising from acts that exceed daily family agency rights.Non-borrowers should not be jointly and severally liable.