| The joint debt of spouses should be characterized as a joint and several debt with an order of settlement. Comparative law experience shows that the limited liability of spouses for joint debt usually exists as a supporting system of "presumption of joint debt", while the current law in China establishes the "presumption of individual debt". In view of the lack of a clear method of public disclosure of the ownership of matrimonial property in China, the key to solving the problem lies not in the scope of property subject to liability, but in the scope of debt determination. As long as the "amount of joint debt of spouses" is equated with "amount of benefit" and the joint debt of the joint beneficiary spouses is identified in a strict way, this system can not only be consistent with the principle of property law of third-party beneficial return, but also effectively eliminate the strictness of joint and several debts. A joint debt of the spouses should firstly be repaid with their joint property, and only when the joint property is insufficient can it be repaid with the personal property of both parties. A personal debt of one spouse shall firstly be repaid with his or her own personal property, and only if his or her own personal property is insufficient can it be repaid with half of the joint property of the spouses. When the personal debt of one spouse and the joint debt of the spouses co-exist, the joint property of the spouses should firstly be used to repay the joint debt, even if the creditor is the same person. The Draft Civil Enforcement Law only provides for the rule on the order of enforcement of the property subject to liability for the repayment of the spouse's personal debt, and the remaining two rules should be added to the draft law. |
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