An Empirical Study on the Determination and Collection Rules for Marital Community Debts

Abstract

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 Interpretations [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 value judgments based on different interpretative techniques. Judges differed in interpreting the terms of “common intent,” “family daily needs,” “common livelihood,” and “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 judgment through 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.

Keywords

marital community debts / rules for debt collection / property responsible for debts / empirical study

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