Traditionally,the Common Law System exercises a legal separation of marital property regime between husband and wife;this regime still has interpretation theory value for functional comparison to that of China.The hus...Traditionally,the Common Law System exercises a legal separation of marital property regime between husband and wife;this regime still has interpretation theory value for functional comparison to that of China.The husband-wife personality integration in the early days of the Common Law System goes back to the original agency of necessity similar to that of the daily family agency of the Civil Law System;the aim was to strengthen marital coherence rather than protect creditors.The“daily family needs”should beidentifiedwithoutexcluding the husband-and-wife separation period,and be based on the consumption level during the time that a couple have lived together.The current mainstream mode of the Common Law System starts from the“Consensual Approach”under the legal regime of separation of property between husband and wife,and limits the“Purpose Theory”to cases of insufficient consensual evidence.Moreover,thismainstream mode is supplemented by the“Presumption Theory”that only exists as a method of proof,and is similar to the current Chinese position of co-debt and co-signing.When a nondebtor consents a debtor to borrow money in the name of husband and wife,this consent can be used as a yardstick to determine their marital community debt and to identify the nature of various debts in the context of marital community debt.展开更多
In dealing with the problem of determining whether a debt should be a marital community debt and how such a debt should be collected,judges may have different value orientations regarding the tradeoff between the prot...In dealing with the problem of determining whether a debt should be a marital community debt and how such a debt should be collected,judges may have different value orientations regarding the tradeoff between the protection of marriage and family and the protection of the creditors,which needs to be studied based on empirical evidence.After the Judicial Interpretationss[2018]No.2(Fa Shi[2018]No.2)was enacted,we analyzed 863 judgments and motions of the Supreme People's Court of the People's Republic of China(PRC)and the high people's courts,and found that under the framework of existing normative regime,judges can still reach different valuejudgmentssbasedondifferent interpretative techniques.Judges differed in interpreting the terms of“common intent,”“family daily needs,”“common livelihood,”and1“joint production and operation,”and they applied various debt collection rules.These facts indicate that sometimes judges have a complex value balancing process in marginal cases,and they have made different value judgmenttthroughh extending or confining debt determination rules or debt collection rules.In some other cases,the different application of rules indicate that judges have interpreted those rules in a wrong way.By studying the judges'existing value orientations and how judges made their decisions,we can evaluate whether existing rules for determining and collecting marital community debts have balanced conflicting values properly,and such facts can also build further consensus for the development of rules.展开更多
文摘Traditionally,the Common Law System exercises a legal separation of marital property regime between husband and wife;this regime still has interpretation theory value for functional comparison to that of China.The husband-wife personality integration in the early days of the Common Law System goes back to the original agency of necessity similar to that of the daily family agency of the Civil Law System;the aim was to strengthen marital coherence rather than protect creditors.The“daily family needs”should beidentifiedwithoutexcluding the husband-and-wife separation period,and be based on the consumption level during the time that a couple have lived together.The current mainstream mode of the Common Law System starts from the“Consensual Approach”under the legal regime of separation of property between husband and wife,and limits the“Purpose Theory”to cases of insufficient consensual evidence.Moreover,thismainstream mode is supplemented by the“Presumption Theory”that only exists as a method of proof,and is similar to the current Chinese position of co-debt and co-signing.When a nondebtor consents a debtor to borrow money in the name of husband and wife,this consent can be used as a yardstick to determine their marital community debt and to identify the nature of various debts in the context of marital community debt.
文摘In dealing with the problem of determining whether a debt should be a marital community debt and how such a debt should be collected,judges may have different value orientations regarding the tradeoff between the protection of marriage and family and the protection of the creditors,which needs to be studied based on empirical evidence.After the Judicial Interpretationss[2018]No.2(Fa Shi[2018]No.2)was enacted,we analyzed 863 judgments and motions of the Supreme People's Court of the People's Republic of China(PRC)and the high people's courts,and found that under the framework of existing normative regime,judges can still reach different valuejudgmentssbasedondifferent interpretative techniques.Judges differed in interpreting the terms of“common intent,”“family daily needs,”“common livelihood,”and1“joint production and operation,”and they applied various debt collection rules.These facts indicate that sometimes judges have a complex value balancing process in marginal cases,and they have made different value judgmenttthroughh extending or confining debt determination rules or debt collection rules.In some other cases,the different application of rules indicate that judges have interpreted those rules in a wrong way.By studying the judges'existing value orientations and how judges made their decisions,we can evaluate whether existing rules for determining and collecting marital community debts have balanced conflicting values properly,and such facts can also build further consensus for the development of rules.
