Rules for Adjudication of Disputes over Joint Debts of Husband and Wife (3)

Rules for Adjudication of Disputes over Joint Debts of Husband and Wife (3)

Revised May 2024

42. Reference case: A bank v. Zhang and Zhou, a financial loan contract dispute

[Summary of the trial]:

Debts incurred by one of the husband and wife in his or her own name during the existence of the marital relationship in excess of the daily needs of the family are not joint debts of the husband and wife, unless the creditor can prove that the debts were used for the husband and wife's common life, joint production and business, or based on the joint intention of the husband and wife.

Case No.: :(2020) Jing 0102 Min Chu No. 15701

43. Where one of the husband and wife borrows a personal loan, and the creditor has no other evidence to support it, the debts involved in the case cannot be determined to be joint debts of the husband and wife solely on the basis that the spouse has made several repayments

[Summary of the trial]:

If one of the husband and wife borrows money from the lender in his or her own name as a borrower, and the lender (creditor) only believes that the loan is for the joint business of the husband and wife based on the borrower's spouse's several repayments, and because the repayment is not necessarily related to whether the joint debts of the husband and wife are constituted, and the lender (creditor) has no other evidence to support it, the people's court should not support the lender's claim that the loan debt involved in the case is a joint debt of the borrower and the husband and wife, and thus require the husband and wife to repay it jointly.

Case Number: :(2021) Supreme Law Min Shen No. 2196

44. The criteria for judging the joint debts of husband and wife are whether the husband and wife have agreed to jointly borrow debts and whether the husband and wife share the benefits brought by the debts -- Wang v. Zhang and Yang, a private lending dispute case

[Summary of the trial]:

According to the basic jurisprudence of day-to-day family agency, debts incurred by one of the spouses in his or her own name during the marriage are presumed to be joint debts of the husband and wife. When a husband and wife divorce, two criteria may be considered for the joint debts of the husband and wife that one party claims and the other party denies, that is, whether the husband and wife have an agreement to jointly borrow debts and whether the husband and wife share the benefits brought by the debts. The court shall make a determination based on the evidence provided by the parties and the ascertained facts. If one of the spouses acts clearly beyond the scope of family agency, he or she cannot be considered to have the power of family agency.

Case No.: :(2006) Min Min Yi (Min) Chu Zi No. 839

45. For money transactions between the two parties that do not indicate the nature of the money during the relationship, one party shall provide evidence to prove that there is a loan agreement on the transfer of funds-Xu v. Yang, a private lending dispute

[Summary of the trial]:

In private lending disputes, the transfer of an amount of money with special meaning between the two parties during the relationship is generally recognized as a gift because it is necessary to express love. For other monetary transactions that do not indicate the nature of the money, the loan amount cannot be offset simply by the difference between the two parties, and one party shall provide evidence to prove that there is a loan agreement on the transferred money before it can be deducted.

46. Where a traffic accident arises from an individual's tortious act and the spouse is not at fault, it cannot be found to be a joint debt of the husband and wife.

[Summary of the trial]:

The Shanxi Provincial High People's Court held that joint debts between husband and wife refer to debts arising from the needs of both husband and wife or one of them to maintain their common life, or to engage in business activities for the purpose of living together. The criterion for judging whether a debt is a joint debt of the husband and wife is whether the debt is a debt incurred by the husband and wife for their common life, and whether one or both spouses have made necessary expenditures and inputs to maintain common production and family life, and the debts created therefrom and the debts in which the husband and wife derive benefits from the debts incurred are the joint debts of the husband and wife. In this case, the debts formed by the husband and wife of Lieutenant Xiaokang and Li Xiaoli, who caused damage to the person and property of the retrial applicant Zhang Feng, caused by the tortious acts committed by Lieutenant Xiaokang and Li Xiaoli, were the debts of tortious acts formed by Wei Xiaokang's personal tortious acts and subjective faults, and the debts were not necessary expenditures and inputs formed to maintain the joint production and life of the husband and wife, so they did not meet the characteristics of joint debts of husband and wife. The other party in the husband and wife, Li Xiaoli, did not commit the tortious act, and was not subjectively at fault, so she did not meet the constitutive elements of tort liability, so she should not bear the debts arising from the damage caused by Wei Xiaokang. Article 18 of the Marriage Law of the People's Republic of China stipulates: 'In any of the following circumstances, it shall be the property of one of the husband and wife. (2) Medical expenses, living allowances for the disabled, and other expenses received by one party as a result of bodily injury. It can be seen that the compensation received by one of the husband and wife for the physical infringement is not the joint property of the husband and wife, but the personal property of one of the spouses, and relatively speaking, the tortious debt of one of the husband and wife to others is not the joint debt of the husband and wife, but the personal debt of the torting party. In summary, debts arising from the tortious acts of one of the husband and wife causing damage to the person or property of others should not be recognized as joint debts of the husband and wife.

Case No.: :(2017) Jin Min Shen No. 1428

47. If the creditor clearly knows that the loan is not used for the common life of the husband and wife, the loan should be determined to be the personal debt of one of the husband and wife-Fujian Spring and Autumn Culture Development Co., Ltd. v. Lin He and Chen Xiaoye, a private loan dispute

[Summary of the trial]:

The creditor clearly knew that the loan was not used for the borrower's husband and wife's common life, joint production and operation, and was not based on the common intention of the husband and wife, and its litigation claim that the loan constituted a joint debt of the husband and wife had no corresponding factual and legal basis, and the court did not support it.

Case Number: :(2018) Supreme Law Min Zai No. 20

48. The use of the vehicle involved in the accident is not necessarily related to whether the tortious debt is agreed upon by the husband and wife or used for the joint production and life of the family, and the tortious debt arising from the traffic accident is sudden and uncertain, and is not the necessary expenditure or investment of the husband and wife to maintain the joint production and life of the family, and the husband and wife cannot obtain benefits from it, so it cannot be determined as a joint debt of the husband and wife.

[Summary of the trial]:

The Beijing No. 1 Intermediate People's Court held that the focus of the dispute in this case was whether the tortious debt incurred by Zeng should be recognized as a joint debt of the husband and wife. According to the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Debts between Husband and Wife, the determination of whether a debt is a joint debt of the husband and wife should be comprehensively considered whether the debt is based on the agreement of the husband and wife or whether the debt is used for family life or joint production and operation. The debt involved in this case is a tortious debt arising from a traffic accident. First of all, according to the traffic accident liability determination, the traffic accident was caused by Zeng's unilateral tortious act, and Zhang's injury was also caused by Zeng's tortious act, and Deng did not commit tortious acts against Zhang, and was not subjectively at fault. Second, there is no necessary connection between whether the vehicle driven at the time of the traffic accident was used to deliver milk and whether the debt was agreed upon by the husband and wife or used for the joint production and life of the family, and it cannot be inferred that the tortious debt arising from the traffic accident was borne by the family because the vehicle was driven by Zeng X when delivering milk, and Zhang did not submit sufficient evidence to prove that Zeng X had a traffic accident on the way to deliver milk. Finally, the tortious debt arising from the traffic accident is sudden and uncertain, and is not the necessary expenditure or investment of the husband and wife to maintain the joint production and life of the family, and the husband and wife cannot obtain benefits from it, so the tortious debt incurred by Zeng X based on the traffic accident in this case cannot be recognized as a joint debt of the husband and wife, and this court does not support Zhang's appeal claim.

Case No.: :(2019) Jing 01 Min Zhong No. 3660

49. When only the proof of payment delivery is provided but the certificate of loan agreement is not provided, the lender still needs to bear the burden of proof for the establishment of the loan relationship - Sun XX v. Feng XX Private Lending Dispute

[Summary of the trial]:

The lender submitted evidence of payment to the borrower, which can prove that there were mutual fund transactions between the two parties, but neither party provided evidence to prove the nature of the fund exchanges, and the lender, as the party claiming the existence of a private lending relationship between the two parties, should bear the adverse consequences.

50. The other spouse has neither the right to control the operation of the vehicle nor the benefits of operation, so the debt of traffic accident tort should be his personal debt.

[Summary of the trial]:

The Jilin Provincial High People's Court held that Guo Mouchao's statement that the car was purchased with his actual capital and that the car was placed in the name of Jiaxin Company for transportation operations, and that the vehicle affiliation service agreement corroborated Guo Mouchao's statement, which was sufficient to determine that Guo Mouchao and Jiaxin Company were in a vehicle affiliation relationship, and Jiaxin Company's retrial argument that the two parties were in a vehicle sales relationship rather than a vehicle affiliation could not be established, and this court did not support it. Article 3 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases Involving Compensation for Damages in Road Traffic Accidents stipulates that: "If a motor vehicle engaged in road transport business in the form of affiliation causes damage caused by a traffic accident, it is the responsibility of one party to the motor vehicle, and the people's court shall support the request of the parties that the affiliated party and the affiliated party bear joint and several liability." Jiaxin's argument that it should not bear joint and several liability for the retrial cannot be established, and this court does not support it; The driver who caused the accident, Wang Zhengang, was employed by the owner Guo Mouchao, and Wang Zhengang's wife, Liang Lili, had no right to control the operation of the car, nor did she enjoy the benefits of operation, so Wang Zhengang's tortious debt should be his personal debt. In this case, two people died in a motor vehicle traffic accident, one of whom had an urban household registration and the other was a rural household registration, and the original trial court ruled that Article 17 of the Tort Liability of the People's Republic of China was applied in order to unify the compensation standards, "If multiple people die as a result of the same tortious act, the death compensation may be determined in the same amount." "It is not improper to determine the amount of compensation based on the urban standard, so Jiaxin Company's argument that the compensation standard of Zhao Xia and Zhang Yanglin should be calculated according to the rural standard cannot be established, and this court does not support it.

Case Number: :(2017) Ji Min Shen No. 2436

51. After the divorce, the loan borrowed by one of the husband and wife to repay the joint debts during the existence of the marital relationship is still the joint debts of the husband and wife -- Wang Jianping v. Wang Caixia et al., a private lending dispute case

[Summary of the trial]:

If the divorce is used to repay the debts of the family living together during the marriage, such as the bank loan for the marital house, then the loan is still a joint debt of the husband and wife and must be repaid by the two of them.

Case Number: :(2010) Er Zhong Min Zhong Zi No. 22343

52. After the divorce, the IOU issued by an individual for the debts owed during the existence of the marital relationship should be personal debts -- Jiang Zhaoli v. Pang Lei et al., a private lending dispute case

[Summary of the trial]:

Debts owed by the perpetrator during the existence of the marital relationship, but the IOU provided is written by the actor after the divorce, the debt should be the debt of one of the parties, not the joint debt of the husband and wife. Because if the IOU is written by the individual after the divorce, then the act of changing the IOU should be deemed to have re-established the creditor-debtor relationship between the parties. At this time, the husband and wife are divorced, so it is up to one party to pay the debt. This not only protects the legitimate rights and interests of creditors, but also avoids the unwitting and unbeneficiary party in the marriage relationship from falling into difficulties.

Case No.: :(2009) Min Zai Chu Zi No. 13

53. The traffic accident occurred during the existence of the marital relationship, and both husband and wife were family co-owners of the vehicle that caused the accident. According to Article 24 of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China) and the Supplementary Provisions of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China), there is a factual and legal basis for the court to order the other party to the marriage to bear the liability for the debts arising from the damage caused by the traffic accident.

[Summary of the trial]:

The Heilongjiang Provincial High People's Court held that on September 6, 2011, when Liang Peng was driving his car along the Suiman Highway, he crashed into Liu Jinbao and Ding Sheng, who were sitting on the side of the road, causing Liu Jinbao to die on the spot, Ding Sheng died after rescue efforts failed, and Li Zhiying, a person in the car, died after rescue efforts failed. The No. 20110906 road traffic accident certificate issued by the Traffic Police Brigade of the Gannan County Public Security Bureau determined that Liang Peng had violated the "People's Republic of China Road Traffic Safety Law" by driving a motor vehicle and was fully responsible for the accident. Although Yu Lei asserted that the connection between Ding Sheng's damage and Liang Peng's conduct was doubtful, the road traffic accident determination made a clear determination of the causal relationship between Ding Sheng's damage and Liang Peng's tortious act. According to Article 2 of the Tort Liability Law of the People's Republic of China, which stipulates that "infringement of civil rights and interests shall bear tort liability in accordance with this Law" and Article 3 "the infringed party has the right to request the infringer to bear tort liability", Liang Peng shall bear the civil liability for this traffic accident. The traffic accident occurred during the existence of the marital relationship between Liang Peng and Yu Lei, Liang Peng had died in the traffic accident, and Yu Lei admitted that the vehicle that caused the accident was owned by him during the investigation by the traffic police department and the original trial court, so the vehicle driven by Liang Peng was the joint property of the husband and wife of Yu Lei, and Yu Lei was the family co-owner of the vehicle that caused the accident. According to Article 24 of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China, "Where a creditor claims rights in respect of a debt incurred by one of the spouses in his or her own name during the existence of the marital relationship, it shall be treated as a joint debt of the husband and wife." However, unless one of the husband and wife can prove that the creditor and the debtor have expressly agreed that it is a personal debt, or can prove that it falls under the circumstances specified in the third paragraph of Article 19 of the Marriage Law' and the supplementary provisions of the Interpretation (2) of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China, Yu Lei, as the wife of the perpetrator Liang Peng, is a qualified subject in this case, and there is a factual and legal basis for the trial court to order Yu Lei to bear the liability for the debts caused by Liang Peng's damage caused by the traffic accident.

Case Number: :(2019) Hei Min Zai No. 378

54. The determination of whether the debts incurred by one party as a result of infringement during the existence of the husband and wife relationship are joint debts of the husband and wife shall be based on the interests of the tortious act. If the vehicle involved was purchased during the existence of the relationship between the husband and wife, and the traffic accident occurred because the husband and wife jointly owned and shared the benefits of use, then the resulting tort debt should be recognized as a joint debt of the husband and wife.

[Summary of the trial]:

The High People's Court of Xinjiang Uygur Autonomous Region held that Duan Linhong should be liable for compensation for Du Qizhi's tortious debts. The reasons are as follows: the determination of whether the other party needs to bear joint and several liability for the tortious act of one party during the existence of the marital relationship should be based on the interests of the tortious act. The vehicle involved in this case was purchased by Duan Linhong and Du Qizhi during the existence of the husband and wife relationship, and at the time of the traffic accident, the vehicle was the joint property of the husband and wife and was used by the husband and wife in their family life, and the two jointly managed it and enjoyed the benefits of its use. At the time of the incident, Du Qizhi's driving behavior was an act carried out for the common interests of the husband and wife, and the resulting tortious debt should be recognized as a joint debt of the husband and wife. It was not inappropriate for the court of first and second instance to order Duan Linhong and Du Qizhi to bear joint liability for the debts involved in the case.

Case Number: :(2022) Xin Min Shen No. 1010

55. The joint debts of husband and wife should not only be based on the existence of the marital relationship, but should also examine whether the money is borne by the common life -- Shandong Haoxi Economic and Trade Co., Ltd. v. Zhu Junqiang and Xu Ping, a private loan dispute

[Summary of the trial]:

Whether or not one of the debts incurred by one of the spouses during the existence of the marital relationship is a joint debt of the husband and wife should not only be based on the existence of the marital relationship, but also whether the money is borne by the common life. Reasonable debts incurred during the marriage as a result of daily life or joint production, even if one of the spouses incurs debts, shall be joint debts of the husband and wife. However, on matters that exceed the power of representation in the daily affairs of the husband and wife, the husband and wife shall negotiate on an equal footing and reach a consensus. Where others have reason to believe that it is an expression of the common will of the husband and wife, the other party must not oppose the bona fide third party on the grounds that they do not agree or do not know. The third party should bear the burden of proof for his or her own "reasonable belief".

Case No.: :(2014) Zimin Yi Zhong Zi No. 729

56. Determination of Loan Principal, Guarantee Relationship and Joint Debts of Husband and Wife in Private Lending Cases -- Lin v. Yang et al., a private lending dispute

[Summary of the trial]:

The guarantor and the creditor may enter into separate guarantee contracts for a single main contract, or they may agree to conclude a guarantee contract within the maximum amount of claims for a loan contract or a commodity transaction contract that occurs continuously for a certain period of time.

If the plaintiff submits proof of creditor's rights and the defendant raises objections to the amount of the loan, the plaintiff shall bear the corresponding burden of proof, and the court shall comprehensively determine the actual amount of the loan based on the parties' statements in court, the method of delivery, and the time of delivery.

The joint debts of the husband and wife shall be the debts incurred by the husband and wife as a result of living together, and shall be comprehensively determined from the perspective of whether the husband and wife have an agreement to jointly borrow debts and whether they have shared the benefits brought by the debts.

Case No.: :(2014) Sui Zhong Fa Min Jin Zhong Zi No. 909

57. The fact that one of the spouses benefits from the debts formed by the loans of one of the husband and wife does not automatically give rise to the legal consequences of the joint debts of the husband and wife under the Marriage Law -- a financial loan contract dispute between the applicant Lanzhou Bank Co., Ltd. and the respondent Lin Yijun, Gansu Baihe E-commerce Co., Ltd., Shanghai Sanyuan Internet of Things Technology Co., Ltd., Liao Weiguo, Laipin Network Technology (Beijing) Co., Ltd., Wuyishan Zhoupantianxia Tea Industry Co., Ltd., and Lanzhou Huishang E-commerce Co., Ltd

[Summary of the trial]:

According to the law, if one of the husband and wife incurs a debt in his or her own name during the existence of the marital relationship that exceeds the daily needs of the family, and the creditor claims rights on the ground that it is a joint debt of the husband and wife, the people's court will not support it, unless the creditor can prove that the debt was used for the husband and wife's common life, joint production and operation, or based on the joint intention of the husband and wife. The evidence submitted by the creditor that the debtor (one of the husband and wife) is the legal representative of the company is not sufficient to prove that the debtor is engaged in the business in his personal name and in the capacity of the spouse of the other spouse with the other party, so the creditor's claim that the debt involved in the case is a husband and wife debt cannot be established due to lack of factual basis. The creditor also asserted that the debtor's spouse should be held liable for the de facto benefit of the transaction in question, because it is contrary to the basic legal principle of the Civil Company Law that the property and liabilities of the shareholders and the company are independent, and the fact that the debtor's spouse benefited from the fact does not automatically give rise to the legal consequences of the joint debts of the husband and wife under the Marriage Law.

Case No.: :(2021) Supreme Law Min Shen No. 1540

58. During the existence of the marital relationship, one of the husband and wife bears a large amount of debts in his or her own name, a large number of debts, and a long time span, and both parties have purchased huge amounts of assets and jointly operated businesses during the existence of the marital relationship. At the same time, if one of the spouses frequently transfers money to the other party within a period of time before the divorce, and no reasonable explanation can be given as to the reason for the transfer and the nature of the money, the debts involved in the case shall be deemed to be joint debts of the husband and wife, and the husband and wife shall bear the joint responsibility for repayment.

[Summary of the trial]:

A incurred a large amount of debts in his personal name during the existence of the marriage, the number of debts was large, the time span was long, A and B purchased a huge amount of assets during the marriage, and B admitted that he had jointly operated a microfinance company with A before. According to the transaction details of A's personal current account of People's Bank of China involved in the effective (2019) Yun 05 Min Zhong No. 873 judgment, it can be seen that A transferred more than 5 million yuan to B in multiple payments from February 21, 2017 to before the divorce (A and B divorced on September 19, 2018). Pursuant to Article 3 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Debts between Husband and Wife, the original trial court's determination that the debts involved in the case were joint debts of husband and wife A and B and that A and B were jointly liable for repayment was not lacking in basis, and the application of law was not improper.

Case No.: :(2022) Supreme Law Min Shen No. 425

59. One of the husband and wife signed the IOU established by the spouse as a certifier to confirm that the loan could not be recognized as a joint debt of the husband and wife -- a private loan dispute between Shi Chengtao and Li Buming and Xu Rongfen

[Summary of the trial]:

During the existence of the marital relationship, if one of the husband and wife borrows debts externally, and the spouse signs and confirms the debt certificate as a witness, but denies that it is a joint debt of the husband and wife, and the creditor has no evidence to prove that he is a joint debtor, it is not appropriate to determine that it is a joint debt, but shall be determined to be a personal debt of one of the husband and wife according to the relativity of the contract.

Case Number: :(2018) Su 0923 Min Chu No. 587

60. The debts raised by one of the husband and wife in partnership with others are generally not recognized as joint debts of the husband and wife, unless the creditor can prove that the debts are used for the common life, production and operation of the husband and wife, or based on a common expression of intent——Ye Deli v. Chen Juliang, Guo Danyan, Wang Zhifeng, Lian Wenzhen, a private loan dispute

[Summary of the trial]:

Where one of the husband and wife raises debts in partnership with others during the existence of the marital relationship, and the creditor claims rights on the ground that they are joint debts of the husband and wife, it is not supported, except where the creditor can prove that the debts were used for the husband and wife's common life, joint production and operation, or based on the joint intention of the husband and wife.

Case Number: :(2017) Min 0505 Min Chu Zi No. 1518

61. The Beijing Shunyi District People's Court's reasoning in the judgment on the joint debts of husband and wife

[Summary of the trial]:

The Beijing Shunyi District People's Court held that since this case did not involve the issue of joint and several liability as stipulated in the Tort Liability Law, the substantive focus of the dispute in this case was whether Zhao's liability (debt) arising from the traffic accident was a joint debt of the husband and wife, and whether Li should be jointly and severally liable with Zhao.

(1) As far as the conditions for determining the joint debts of husband and wife are concerned

Generally speaking, joint debts of husband and wife refer to the debts incurred by one or both spouses during the existence of the marital relationship to maintain the common life of the marriage and family, or to jointly produce and operate business activities. At present, the legal provisions currently in force on the joint debts of husband and wife in mainland China mainly include: 1. Article 41 of the Marriage Law of the People's Republic of China (hereinafter referred to as the "Marriage Law") stipulates that at the time of divorce, the debts originally incurred by the husband and wife living together shall be repaid jointly. 2. Article 24 of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (hereinafter referred to as the "Judicial Interpretation II of the Marriage Law") stipulates that if a creditor claims rights in respect of a debt incurred by one of the spouses in his or her own name during the existence of the marital relationship, it shall be treated as a joint debt of the husband and wife. However, one of the husband and wife can prove that the creditor and the debtor have expressly agreed that it is a personal debt, or can prove that it falls under the circumstances provided for in paragraph 3 of article 19 of the Marriage Law. Where one of the husband and wife colludes with a third party to fabricate debts, and the third party claims rights, the people's court will not support it. Where a third party claims rights for debts incurred by one of the spouses in the course of engaging in illegal or criminal activities such as gambling or drug abuse, the people's courts will not support it. 3. Article 1 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Debts between Husband and Wife (hereinafter referred to as the "Judicial Interpretation on the Trial of Debts of Husband and Wife") stipulates that debts borne by the husband and wife shall be recognized as joint debts of the husband and wife if they jointly sign or one of the husband and wife later recognizes the debts of the husband and wife. Article 2 stipulates that if a creditor claims rights for debts incurred by one of the husband and wife in his or her own name for the daily needs of the family during the existence of the marital relationship on the ground that they are joint debts of the husband and wife, the people's court shall uphold them. Article 3 stipulates that if a creditor claims rights for debts incurred by one of the husband and wife in his or her own name during the existence of the marital relationship in excess of the daily needs of the family on the ground that they are joint debts of the husband and wife, the people's court shall not support them, unless the creditor can prove that the debts were used for the husband and wife's common life, joint production and operation, or based on the common intention of the husband and wife.

From the above-mentioned legal provisions, it is not difficult to see that the Marriage Law and the Judicial Interpretation on the Trial of Marital Debts focus on whether the debts are based on common living, joint production and operation, and common expressions of intent, while the Judicial Interpretation II of the Marriage Law focuses more on whether the debts occur during the existence of the marital relationship. As a basic law, the level of effectiveness of the Marriage Law is significantly higher than that of the judicial interpretation, so the conditions for the recognition of joint debts in the Judicial Interpretation of the Marriage Law (II) can only be a refinement, supplement and interpretation of the relevant provisions of the Marriage Law, and must not be abandoned or encroached upon. Article 1064 of the Civil Code of the People's Republic of China, which has not yet come into effect, also stipulates that debts incurred by both husband and wife in the joint signature of the husband and wife or by one of the husband and wife in the subsequent recognition of the common intention, as well as debts incurred by one of the husband and wife in his or her own name for the daily needs of the family during the existence of the marital relationship, are joint debts of the husband and wife. Debts incurred by one of the spouses in his or her own name during the existence of the marital relationship in excess of the daily needs of the family are not joint debts of the husband and wife; However, the creditor can prove that the debt was used for the husband and wife's common life, joint production and business, or based on the common intention of the husband and wife.

To sum up, there are two forms of recognition of joint debts between husband and wife:

First, self-recognition and identification. That is, the debts agreed by the husband and wife are, of course, joint debts of the husband and wife, which belong to the category of autonomy of the husband and wife.

Second, presumptive determination. That is, if one of the husband and wife who is not borrowing debts does not recognize the debt as a joint debt, the court shall conduct a general rational person review and meet the requirements for the constitution of a joint debt, and the debt shall be presumed to be a joint debt.

At this time, there should be two constituent elements for determining the joint debts of the husband and wife: first, the debts must arise during the existence of the marital relationship between the parties; The second is whether the debt arises from the husband and wife living together, joint production and operation, or is used for the husband and wife's common life, production and operation. Otherwise, according to the current legal provisions, the creditor shall provide evidence to prove that the debt is used for the husband and wife's common life, joint production and business, or based on the common intention of the husband and wife.

(2) The legal basis and conflict of the determination of joint debts

The legal basis for determining the joint debts of husband and wife should generally be traced back to the system of daily family agency, which refers to the system in which the legal acts performed by the husband and wife when they interact with a third party due to daily affairs should be regarded as the joint expression of the will of the husband and wife, and the other spouse shall bear joint and several liability. The right of agency in daily family affairs refers to the right of husband and wife to act as each other's agents for daily family affairs, and one party may act for the other party to carry out certain civil activities on daily family affairs. That is, similar to the current laws in force in the mainland, the debt is used for the daily life of the family, the husband and wife living together, etc. While protecting the legitimate rights and interests of creditors, the recognition of joint debts of husband and wife has a new value orientation - interests and purposes, and it is necessary to confirm whether the purpose of the debt is beneficial to the common life, production and operation of the husband and wife, and whether it is more conducive to the beneficial survival of the marital relationship.

It can be seen from this that the determination of the joint debts of husband and wife inherently has a conflict between the protection of the legitimate rights and interests of the creditor and the protection of the legitimate rights and interests of the non-debtor during the marriage, which is the balance and confrontation between the two rights and interests. However, it must be pointed out that the essence of marriage lies in ethics, that is, to return the relationship between husband and wife to its original state. The ethics of marriage is the basic element of marital security, and from the perspective of public policy, transaction security and marital security cannot be neglected, and one party has no absolute priority over the other. There is no question of who is higher or lower in the interests of the husband and wife and the interests of creditor's rights. Then, how to balance these two value orientations will inevitably have a great impact on the recognition of the joint debts of husband and wife.

(3) In terms of the type of debt

Debts are generally divided into contractual debts and tortious debts. In the determination of joint debts of husband and wife, there is also a fundamental difference between tort debts and contractual debts. In the case of joint debts between husband and wife caused by contractual debts, when the counterparty to the contract has claims and debts with one of the husband and wife, based on the awareness of market risks and its own duty of prudent care as a creditor, it may choose to request to avoid risks in the form of joint debts and co-signing, so as to protect the interests of the non-debtor among the husband and wife; Even if the other party to the contract does not have a "joint debt" in the debts of the contract, as long as it is proved that the main purpose of the debts under the contract is for the husband and wife to live together, joint production and operation, it can be presumed that the debts of the contract are joint debts of the husband and wife. Common joint debts of husband and wife are contractual debts, such as joint living debts incurred for the purchase of household daily necessities, payment of family living expenses, improvement of family living conditions, raising and educating children, support and support of parents, etc. Production and operation debts incurred by engaging in individual industrial and commercial, operation, investment or other financial securities trading activities and the income is used for common life.

The tortious debt is generally the liability caused by the tort, and the tort is often accidental and unpredictable. When the tortious act is committed by one of the husband and wife without the mutual agreement of both parties, it is necessary to examine whether the tortious act meets the requirements of the husband and wife living together and jointly producing and operating together in light of the circumstances of the tort itself, and at the same time, in light of the characteristics of the tort itself, comprehensively determine whether the liability for compensation caused by the tortious act (tortious debt) is a joint debt of the husband and wife. It is not difficult to see from the above that the conditions for determining the joint debts of husband and wife are stricter and more cautious than those of contractual debts, and the emphasis on value inclination is also different.

(4) The tortious debt is determined to be a joint debt of the husband and wife

According to the current legal provisions, the tortious debt shall be determined to be a joint debt of the husband and wife, and the above constituent elements shall also be followed.

First, in terms of self-admission, if the tortious debt recognized by both husband and wife is a joint debt of the husband and wife, the debt is of course a joint debt of the husband and wife.

Second, in terms of presumption, that is, if the non-debtor does not recognize it, it is necessary to examine whether the tortious debt is used for the husband and wife to live together and jointly produce and operate. However, the tortious debt itself is a negative debt (mostly a liability for compensation), and the debt itself cannot be beneficial to the husband and wife's common life and joint production and operation, so when reviewing, this court believes that it should examine whether the tortious act is suitable for the husband and wife's common life and joint production and operation. If the tortious act goes beyond the circumstances of the husband and wife living together, joint production and operation as understood by a reasonable person, then it should not be directly presumed to be a joint debt of the husband and wife, but the burden of proof should be placed on the creditor's side, and the creditor should provide evidence to prove that the tortious debt is in line with the circumstances of the husband and wife's common life and joint production and operation, otherwise the creditor should bear the legal consequences of failing to provide evidence. Taking the tort of common motor vehicle traffic accidents as an example, most of these torts are violations of relevant traffic laws and regulations, failure to drive prudently, resulting in losses to the person or property of others, thus giving rise to corresponding liability for compensation and forming tort debts.

Then, the tortious debt itself cannot be beneficial to the husband and wife's common life and joint production and operation, but whether the driving act itself is beneficial to the husband and wife's common life and joint production and operation requires a specific analysis of specific issues, which is also an important factor in judging whether the tortious debt generated by the tortious act is a joint debt of the husband and wife. If the vehicle involved in the accident is in operation at the time of the traffic accident, and the operating income is also used for the normal living expenses of the family, then the tortious debt should be deemed to be a joint debt of the husband and wife; However, if a traffic accident occurs, and the driving behavior is not beneficial to the husband and wife living together, joint production and operation, it cannot be easily determined as a joint debt of the husband and wife, but should be comprehensively judged in combination with the evidence presented by the creditor. To sum up, this court holds that when presuming whether the tortious debt is a joint debt of the husband and wife, it should be comprehensively considered from the perspective of a reasonable person and in combination with various factors such as the cause, time, place, and process of the infringement and whether the other spouse is aware of it, starting from whether the tortious act is beneficial to the common life and joint production and operation of the husband and wife, emphasizing the 'commonality', and determining whether the tortious debt is a joint debt of the husband and wife on the basis of weighing whether the tortious act has shared interests between the husband and wife, so as to realize the sharing of risks between the husband and wife. Otherwise, the rule of burden of proof should be used to determine whether it is a joint debt of the husband and wife.

Case Number: :(2020) Jing 0113 Min Chu No. 3286

Transferred from the same judgment rule for similar cases