Research On The Marital Joint Debt In Private Loan Cases

The marital joint debt is an important part of the property relationship between husband and wife.Based on the empirical analysis of 69 effective judgment documents of China Judgment Documents Network,it can be manifested that there remain many detailed issues in the legal application process of the rules for determining marital joint debt,which are worthy of further consideration.For example,in the case of a spouse raising debts,it is necessary for the other spouse to "recognize after the fact" a clear expression of their will,rather than implying or silence;then,when determining the joint debt of a spouse based on the "needs of the family’s daily life",due to the lack of regulations supporting and complete adjustment measures for the rights and obligations of daily domestic agency,the referee needs to conduct a thorough theoretical proof based on the actual use of the judge.Another example is that when the burden of proof is allocated,based on the privacy of couples’ life,the proof standard of the debt used in couples’ life for the creditor should be appropriately lowered,at the same time,the proof standard for the credit to prove that the debt has been used for marital joint operation or the couple has been commonly benefited from the debt shoud be appropriately increased.In addition,the lack of the division of the marital joint debt settlement responsibilities in Chinese marital debt regulation system has led to frequent confusion between joint repayment and several settlement in judicial practice,resulting in disputes over joint property liability in the settlement of individual liability to a spouse.On the one hand,the marital joint debt is not the same as joint and several obligation to a couple.The couple’s joint repayment responsibility for the joint debt is not the same as the joint and several responsibility.The joint and several debt can only be generated by the consent of the interested parties.On the other hand,there is a significant difference between the joint property ownership between husband and wife and the general property joint relationship.In the process of marital joint debts repayment,a distinction should be made between "potential communal estate" and "explicit communal estate" of the husband and wife.Only in the joint and several obligation to a couple can all the spouse’s personal property and communal estate of the husband and wife be regarded as the responsible property.In the marital joint debt,the explicit communal estate should be paid first,and the insufficient part can be supplemented by the personal property of the debtor.In the repayment of the individual liability to a spouse,the spouse’s share of the explicit joint property and this debtor’s personal property and will be used for repayment.