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《Oriental Law》 2019-01
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Dilemma and Solution for Legislating the Issue of Marital Joint Debts

Li Bei;  
The judicial interpretation of marital debts elaborated by the Supreme Court establishes the rule of 'common debt, common signature', and distribute the burden of proof according to the nature of the marital debts. The interpretation intends to eliminate the litigation at the stage of conclusion of contract by imposing a duty of vigilance. However, according to the concrete application of this text, those objectives mentioned before have not been fulfilled. On one hand, the 'ideal model' focused by the judicial interpretation(the litigation of loan occurred after the termination of spousal relationship) cannot cover all varieties of marital debts; on the other hand, this interpretation focuses exclusively on the qualification of the marital debt, but ignores the problem of legal effects attached to the common debt, and it fails to distinguish the internal and external aspects of the marital debt. The marital debts are simply treated as joint debts. In conclusion, the future civil code should reconstruct the system of marital debts.
【Fund】: 彭诚信教授主持的2016年国家哲学社会科学重点基金项目“程序性权利理论的提出与证成研究”(项目批准号:16AFX003);; 2018年度国家社科基金重大项目:“大数据时代个人数据保护与数据权利体系研究”(项目批准号:18ZDA145)阶段性研究成果
【CateGory Index】: D923.9
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