| The current system of marital common property in China should be interpreted as potential sharing system. As far as internal marital relationship is concerned, the adoption of the potential sharing theory can free rules of property distribution from the limitation of the concept of property right, avoid the result of improper interference in the acquisition rules of property right, and be conducive to accurate value judgment. As far as external marital relationship is concerned, the adoption of potential sharing theory can prevent the complexity of marital common property from impairing transaction safety. Under potential sharing theory, the registration stipulated in Article 10 of Interpretation Ⅲ of the Supreme People's Court of Several Issues on the Application of the Marriage Law of the P.R.C. serves only as a presumption of preference in marital relationship. Article 17 paragraph 1 subparagraph 4 of the Marriage Law, Article 22 of Interpretation Ⅱ of the Supreme People's Court of Several Issues on the Application of the Marriage Law and Article 7 of Interpretation Ⅲ of the Supreme People's Court of Several Issues on the Application of the Marriage Law are all rules on the interpretation of declaration of will, which are not related to marital common property system. The mode of current law, which classifies joint debts on the basis of internal and external marital relationships, is reasonable, but improvement should be made in risk control. To be specific, the right of claim of recoupment in marital relationship should be affirmed and the rules on the distribution of internal and external proof burdens should be distinguished from each other. The scope of property for the debts incurred by the non-direct-debtor should be limited to the common property and the part he or she gets from the division of the marital common property in divorce. |
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