Skip to main content
SpringerLink
Log in

Marriage Transmitted Debt in the Chinese Civil Code: The Beginning of a Solution Rather than the End

  • Published:
Feminist Legal Studies Aims and scope Submit manuscript

Abstract

This paper is the first to critically analyse how the newly enacted Chinese Civil Code addresses gender equality in the intersection of family and commercial contracting. It proposes ‘marriage transmitted debt’ (MTD) in China as a new concept as opposed to ‘sexually transmitted debt’ (STD) documented in English and Australian jurisprudence. MTD refers to the debt incurred by one spouse but transmitted to the other spouse due to the status of the marriage. Supported by empirical statistics, it shows that while the statutory language of MTD regulation in China is neutral, wives are still disadvantaged. Although this has been partly addressed by shifting the onus of proof to creditors, the meaning of debt incurred for the daily life of a family or the joint life of the couple in the Code needs further judicial development. The Code is the beginning of a solution rather than the end to achieving gender equality in China.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Log in via an institution

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

Similar content being viewed by others

Notes

  1. Interpretation of the Supreme People's Court about Several Problems Concerning the Application of the Marriage Law of the People's Republic of China (II), issued on 26 December 2003 and effective on 1 April 2004.

  2. Interpretation on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes of Marital Debt, adopted at the 1731st meeting of the Judicial Committee of the Supreme People's Court on 8 January 2018 and effective on 18 January 2018.

  3. The Chinese Civil Code was enacted by the Third Meeting of the Thirteenth National People’s Congress on 28 May 2020 and took effect on 1 January 2021. The official English version is available at http://www.npc.gov.cn/englishnpc/c23934/202107/7c7f9fc3765947a89627ef67e89e8b84/files/da0d8a6da39a478ab93639efd815b685.pdfhttp://www.npc.gov.cn/englishnpc/c23934/202107/7c7f9fc3765947a89627ef67e89e8b84/files/da0d8a6da39a478ab93639efd815b6. Accessed 26 August 2021.

  4. See Section II.A below.

  5. Arts. 1055, 1062 and 1065 of the Chinese Civil Code.

  6. MTD should be distinguished from ‘emotionally transmitted debt’ where a person assumes liability for the debts of relatives and friends, other than for sexual partners. MTD is also distinct from ‘relationship transmitted debts (RTDs),’ which describes debts transferred from a child to parents, between friends and relations, and from spiritual adviser to devotees (Howell, 1995).

  7. See the discussion in Section III.C below.

  8. Art. 1 of the 2018 Judicial Interpretation and Art. 1064 of the Code.

  9. Arts. 2 and 3 the 2018 Judicial Interpretation and Arts. 1060 and 1064 of the Code.

  10. Reply on Determining the Nature of a Debt Incurred by One Spouse in His or Her Name during the Existence of a Marital Relationship; issued and effective on 12 July 2014, No. 10 [2014] of the Civil Division I of the Supreme People's Court.

  11. Ibid.

  12. Ibid.

  13. The focus of this paper is the external relationship, i.e., the creditor’s claim against the non-borrowing spouse, and not property division between spouses.

  14. See discussion at Section II.B below. Although there are academic disputes whether same-sex marriage should be recognised, currently in China a legally recognised marriage is between a male (husband) and a female (wife).

  15. SPC Interpretation about Several Problems Concerning the Application of the Marriage Law of the People's Republic of China (II), issued on 26 December 2003 and effective on 1 April 2004.

  16. Ibid. Art. 36 of the SPC Judicial Interpretation of the Civil Code (Marriage and Family Law Section).

  17. SPC Reply on ‘The Suggestion to Abolish Article 24 of the 2003 Judicial Interpretation’, issued and effective on 17 March 2016.

  18. Ibid.

  19. Ibid.

  20. Art. 1062 of the Code (which lists properties obtained during the marriage that are deemed joint property of the couple: (i) wages and bonuses; (ii) proceeds of production and business operation; (iii) income from intellectual property rights; (iv) property acquired from inheritance or presentation, with the exception of property stipulated in the third item of Art. 1063 of this Law; and (v) other property which should be in their joint possession). See also Arts. 24–26 of the SPC Judicial Interpretation of the Civil Code (Marriage and Family Law Section), issued and effective on 30 December 2020.

  21. For example, the borrowing spouse fabricates facts to prove that the debt is only for his or her personal expenses in order to protect the joint marital property.

  22. E.g., the Reply on the Suggestion to Abolish Article 24 of the 2003 Judicial Interpretation, issued by the SPC and effective on 17 March 2016 and fn 24, 25, 26.

  23. In China, judicial interpretations (including replies and notices) are less authoritative than legislation and they aim to limit the discretion of judges in lower-level courts and guide them in their application of statutes.

  24. Art. 24 of the 2003 Judicial Interpretation.

  25. Art. 19.3 of the 2001 Chinese Family Law.

  26. Reply on Determining the Nature of a Debt Incurred by One Spouse in His or Her Name during the Existence of a Marital Relationship, issued and effective on 12 July 2014, No. 10 [2014] of the Civil Division I of the Supreme People's Court. See, for example, Determination of a Couple’s Common Debt when a Spouse Raises Debts in an Individual’s Name–Zhejiang Yinzhou Intermediate People’s Court Judgment of Gong Wenjuan v. Yan Lijuan et al., People’s Court Daily, 21 July 2011 at p 006 (in this case, the second instance court held that the debt was not the marital debt of the couple because it was borrowed half a month before the divorce and there was no evidence to show that the debt was used for the joint life of the couple).

  27. Article 24 of Amendment to the Interpretations of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (II); adopted on 4 December 2003 at the 1299th meeting of the Supreme People’s Court Judicial Committee; revised on 20 February 2017 at the 1710th meeting of the SPC Judicial Committee.

  28. Supreme People’s Court Notification on How to Properly Resolve Disputes on Marital Debts according to Law, issued and effective on 28 February 2017, Fa [2017] No. 48.

  29. Interpretation on Issues concerning the Application of Law in the Trial of Cases Involving Disputes of Marital Debt, adopted at the 1731st meeting of the Judicial Committee of the Supreme People's Court on 8 January 2018 and effective on 18 January 2018.

  30. Art. 1064 of the Code.

  31. Ibid., Art. 1060 of the Code.

  32. The theoretical foundation of situation (iii) is the equal right of spouses to dispose joint property gained from their joint life or joint production, see Art. 1062 of the Code. See also art. 43 of the SPC Opinions on Several Questions to Implement the General Principles of Civil Law (providing that, during the marriage, if one spouse engages in self-employed or contracted business, the income shall be the joint property of the couple, and the debt shall also be paid off with the joint property of the couple), issued and effective on 2 April 1998 and abolished with the coming into effect of the Code.

  33. We sourced the judgments from the official Chinese judgment website: https://wenshu.court.gov.cn/. We first used the search function on the website to find judgments invoking art. 24 of the 2003 Judicial Interpretation or the 2018 Judicial Interpretation. We then read each judgment to determine whether the other three criteria were satisfied. We comprehensively reviewed thousands of judgments and finally identified the 188 judgments. We ensured that the selected judgments covered as many Chinese provinces as possible and were issued by different levels of Chinese courts so as to provide a balanced jurisdictional coverage. The yearly distribution of the judgments and the levels and geographic distribution of the relevant courts are included in the annexures.

  34. MTD is debt transmitted by marriage, so it only occurs during a couple’s marriage. However, a creditor can bring an MTD claim against either or both a borrowing spouse and a non-borrowing spouse during their marriage or after their divorce, subject to the statute of limitations. We consider that if a MTD claim is brought during marriage, there are more possibilities of family collusion where the borrowing spouse may argue that the debt is borrowed only for his or her personal need so that the joint marital property will not be used to pay for the debt. Although we think that excluding these possibilities completely is not realistic, we consider that collusion between the borrowing and the non-borrowing spouses may occur less often when an MTD claim is brought against a couple who are divorced or when a borrowing spouse’s whereabouts are unknown.

  35. Ibid.

  36. If the full-scale survey focused on the same period as the preliminary survey (2012–2017), it would have included judgments issued, for example, in 2012 and 2013, which thus could not have considered the 2014 and 2016 Replies and the 2017 Judicial Interpretation. Judgments issued in 2014 could not have considered the 2016 Reply and the 2017 Judicial Interpretation.

  37. Although the Code and the 2018 Judicial Interpretation do not specify which party should prove that the debt is used for the daily life of a family, the judgments surveyed support a strong implication that the onus is on the creditors. The Code and the 2018 Judicial Interpretation explicitly require the creditor to prove the debt is used for the joint life or joint production of the couple or based on their joint consent.

  38. The search key word is ‘《最高人民法院关于适用〈中华人民共和国婚姻法〉若干问题的解释 (二) 》第二十四条’ (Zuigao Renmin Fayuan Guanyu Shiyong < Zhonghua Renmin Gongheguo Hunyinfa > Ruogan Wenti de Jieshi (er)’ di Ershishi Tiao) [Art. 24 of the 2003 Judicial Interpretation]. The search was conducted on the official Chinese judgments website (https://wenshu.court.gov.cn/), accessed on 17 July 2021. We selected cases up to 2017 because art. 24 of the 2003 Judicial Interpretation was abolished in 2018.

  39. There might be another potential reason to explain why the number of MTD judgments before 2013 is small, namely that those judgments were not published at all. China only recently began to publish a large number of judgments online and made them accessible to the public. We speculate that many judgments rendered between 2003 and 2012 were not published online, which explains why we could not find MTD cases. Further, most judgments invoking art. 24 of the 2003 Judicial Interpretation were rendered by lower-level People’s Courts, and we speculate that their judgments were not generally available to the public.

  40. World Economic Forum. 2019. Global Gender Gap Report 2020. https://www.weforum.org/reports/gender-gap-2020-report-100-years-pay-equality. Accessed 8 August 2021.

  41. International Labour Organisation. 2021. Labor force participation rate, female (% of female population ages 15+) (modelled ILO estimate)-China, https://data.worldbank.org/indicator/SL.TLF.CACT.FE.ZS?end=2020&locations=CN&start=1990. Accessed 8 August 2021.

  42. International Labour Organisation. 2021. Labour force participation rate, male (% of female population ages 15+) (modelled ILO estimate)-China, https://data.worldbank.org/indicator/SL.TLF.CACT.MA.ZS?end=2020&locations=CN&start=1990. Accessed 8 August 2021.

  43. Quan Nv. 2020. The latest gender data of the National Bureau of Statistics is released: what is the current status of gender equality in China. Huxiu, 24 August 2020,

    https://www.huxiu.com/article/377564.html. Accessed 8 August 2021.

  44. Private lending dispute between Huang Shurong and Ren Liuquan and Nie Qingyun, Chongqing Third Intermediate People's Court, (2018) Yu 03 Min Zhong No. 648 Hao.

  45. L’ Esrange v Graucob [1934] 2 KB 394, 403.

  46. Arts. 490 and 493 of the Code.

  47. Although the Australian study included a range of guarantors, two thirds of them were women.

  48. Unreported, HCMP 3324/2002, 15 October 2003 (discussed in Ho 2011, 71–72).

  49. Unreported, HCMP 3324/2002, paras 23–24.

  50. Lord Scarman in Westminster Bank v Morgan [1985] AC 686, 703.

  51. Lord Brown-Wilkinson noted that “in practice many wives are still subjected to, and yield to undue influence by their husbands.”.“in practice many wives are still subjected to, and yield to undue influence by their husbands.” Barclays Bank v O’Brien [1994] 1 AC 180, 188.

  52. [1994] 1 AC 180 (House of Lords).

  53. [2002] 2 AC 773 (House of Lords).

  54. (1940) 63 CLR 649.

  55. Yerkey v Jones (1940) 63 CLR 649, 683 (High Court of Australia).

  56. (1998) 194 CLR 395, 403 (High Court of Australia).

  57. Ibid at 404.

  58. Ibid at 408–409.

  59. Crucially, by the New South Wales Court of Appeal, see Akins v National Australia Bank (1994) 34 NSWLR 155; National Australia Bank Ltd v Garcia (1996) 39 NSWLR 577; Teachers Health Investments Pty Ltd v Wynne (1996) ASC 56–356.

  60. Garcia, at 422.

  61. Gender equality in arts. 2, 4, 113 of the Code.

  62. Arts. 23 and 24 of Chinese 1950 Marriage Law, adopted at the 7th Meeting of the Committee of the Central People’s Government on 13 April 1950.

  63. The 1980 Marriage Law was adopted at the Third Session of the Fifth National People's Congress, promulgated by Order No. 9 of the Chairman of the Standing Committee of the National People's Congress on 10 September 1980, and became effective on 1 January 1981.

  64. Huiqing Sun v. Guohui Zhan and Shuhua Zhang, Civil Judgment of Supreme People’s Court, (2019) Zuigaofa Min Zhong 197 Hao.

  65. Notably, art. 33 of the SPC Judicial Interpretation of the Civil Code (Marriage and Family Law Section) uses the concept of ‘the joint life of a family’ without defining it (art. 33 provides that ‘[w]here a creditor requests a debtor's spouse to pay for a debt incurred by the debtor before marriage, the People's Court shall not support the creditor's claim, unless the creditor can prove that the debt is used for the joint life of the family.) It is unclear how the meaning of ‘the joint life of a family’ differs from ‘the daily expense of a family’ and ‘the joint life of a couple’.

  66. See Section 2.B above.

  67. The 2001 Judicial Interpretation on Several Issues Concerning the Application of the Marriage Law, enacted at the 1202nd Meeting of the Judicial Committee of the SPC on 24 December 2001 and effective on 27 December 2001, Fashi [2001] No. 30.

  68. Retrial Judgment of Jia Xing City XX Limited Company v. Jia Xing City XX Zhong XX Clothing Limited Company, the High Court of Zhejiang Province, (2011) Zhe Min Zai Zi No. 96.

  69. In 2019, housing was the second largest expense for Chinese residents, accounting for 23.4% of annual incomes. Food was the largest expense, accounting for 28.2% of annual income. See China National Bureau of Statistics. 2020. Residents’ Income and Expenses in 2019. China National Bureau of Statistics, 17 January 2020,China National Bureau of Statistics, 17 January 2020. http://www.stats.gov.cn/tjsj/zxfb/202001/t20200117_1723396.html. Accessed 8 August 2021.

  70. About 70% of women interviewed said that housing, stable income and some savings were their main requirements for marriage. From the report, we can conclude that housing is the most important of these factors. Even the few ‘feminine extremists’ believed that an apartment was a good way to judge whether a male would be responsible and provide for his family (Huang 2010).

  71. Chapter 16 of the Chinese Civil Procedure Law, adopted at the 4th Session of the Seventh National People’s Congress on 9 April 1991 and amended at the 28th Session of the Standing Committee of the Twelfth National People’s Congress on 27 June 2017.

  72. This excludes the special administrative regions of Hong Kong and Macau.

References

  • Allan, Barry. 2006. ‘Trust Me, I’m your Husband’: Undue Influence and Royal Bank of Scotland v Etridge. Otago Law Review 11: 247–262.

    Google Scholar 

  • Auchmuty, Rosemary. 2000. The Fiction of Equity. In Feminist Perspectives on Equity and Trusts, ed. Susan Scott-Hunt and Hilary Lim, 1–26. London: Routledge-Cavendish.

    Google Scholar 

  • Auchmuty, Rosemary. 2002. Men Behaving Badly: An Analysis of English Undue Influence Cases. Social & Legal Studies 11: 259.

    Article  Google Scholar 

  • Australian Law Reform Commission (ALRC). 1994. ‘Equality before the Law: Women’s Equality Report No 69’ Part II. Sydney: Commonwealth of Australia: [13.4].

  • Baron, Paula. 1995. The Free Exercise of Her Will: Women and Emotionally Transmitted Debt. Law in Context 13: 23 and 24.

    Google Scholar 

  • Barnett, Randy E. 1986. A Consent Theory of Contract. Columbia Law Review 86: 269–321 (citing PS Atiyah. 1981. Promises, Morals and Law. Oxford: Clarendon Press).

    Article  Google Scholar 

  • Benhabib, Seyla. 1995. Cultural Complexity, Moral Interdependence, and the Global Dialogical Community. In Women, Culture, and Development: A Study of Human Capabilities, ed. Martha C. Nussbaum and Jonathan Glover, 235–256. Oxford: Clarendon Press.

    Chapter  Google Scholar 

  • Bottomley, Anne, and Sally Sheldon. 2000. Series Editors Preface. In Feminist Perspectives on Equity and Trusts, ed. Susan Scott-Hunt and Hilary Lim, vii. London: Routledge-Cavendish.

    Google Scholar 

  • Brines, Julie. 1994. Economic Dependency, Gender and the Division of Labor at Home. American Journal of Sociology 100: 652–688.

    Article  Google Scholar 

  • Brown, Murray. 2007. The Bank, the Wife and the Husband’s Solicitor. Australian Property Law Journal 14: 147.

    Google Scholar 

  • Chen, Jianfu. 2008. Chinese Law: Context and Transformation. Boston: Martinus Nijhoff Publishers.

    Book  Google Scholar 

  • Chen, Wei, Xin Zhang, and Shi Lei. 2018. Empirical Research on Protecting Women’s Property Rights in Divorce Proceedings in China. International Journal of Law, Policy and the Family 32: 109–118.

    Article  Google Scholar 

  • Chen-Wishart, Mindy. 2006. Undue Influence: Beyond Impaired Consent and Wrongdoing towards a Relational Analysis. In Mapping the Law: Essays in Memory of Peter Birks, ed. Andrew Burrows and Lord Rodger of Earlsferry, 201–222. Oxford: Oxford University Press.

    Chapter  Google Scholar 

  • China News Daily. 2017. Article 24: a Judicial Interpretation and Debt or no Debt for the Non-borrowing Spouse. China News Weekly, 27 February. https://news.china.com/socialgd/10000169/20170227/30287158_all.html. Accessed 8 August 2021.

  • Collier, Berna. 1997. Confusion Now Hath Made This Masterpiece!: The Present Uncertainties Surrounding the Rule in Yerkey v Jones. Australian Business Law Review 25: 190–202.

    Google Scholar 

  • Coltrane, Scott. 2000. Research on Household Labor: Modeling and Measuring the Social Embeddedness of Routine Family Work. Journal of Marriage and the Family 62: 1208–1233.

    Article  Google Scholar 

  • Deng, Xueping. 2017. The submissions on Article 24 of the Marraige Law Judicual Interpretation II are like ‘numerous snowflakes’. Xin Jing Bao Pinglun [New Beijing Daily Comments]. https://mp.weixin.qq.com/s/BhPPtaF-ri0w7YcgaRYwGQ. Accessed 8 August 2021.

  • Dunn, Kristie. 2000. Yakking Giants: Equality Discourse in the High Court. Melbourne University Law Review 24: 427–461.

    Google Scholar 

  • Ershu, Zeng., and Zhang, Zhijing. 1996. Modernising Law in China: A Comparison of the Power of the Husband in Ancient Chinese and Roman Law. The Australian Feminist Law Journal 7: 171–178.

    Article  Google Scholar 

  • Fazhi Shengyan. 2017. Could You Escape from ‘Article 24’ except that You do not Marry. Fazhi Shengyan [Rule of Law], 6 March. https://think.sina.cn/jujiao/doc--ifyazwha3903150.d.html. Accessed 8 August 2021.

  • Fehlberg, Belinda. 1997a. Money and Marriage: Sexually Transmitted Debt in England. International Journal of Law, Policy & the Family 11: 320–343.

    Article  Google Scholar 

  • Fehlberg, Belinda. 1997b. Sexually Transmitted Debt: Surety Experience and English Law. Oxford: Oxford University Press.

    Google Scholar 

  • Fehlberg, Belinda. 1994. The Husband, the Bank, the Wife and her Signature. The Modern Law Review 57: 675–694.

    Article  Google Scholar 

  • Feng, Xiaoqing. 2002. A Review of the Development of Marriage Law in the People’s Republic of China. University of Detroit Mercy Law Review 79: 331–398.

    Google Scholar 

  • Funiak, WQD and Vaughn, MJ. 1971. Liabilities of Spouses for Postnuptial Contractual Obligations. South Texas Law Journal 13: 33–40.

    Google Scholar 

  • Giancaspro, Mark. 2017. ‘I Now Pronounce You … in a State of Uncertainty’: Contemporary Treatment of the Wives’ Special Equity and a Plan for the Future. Journal of Equity 11: 80–112.

    Google Scholar 

  • Giliker, Paula. 1991. Barclays Bank v O’ Brien Revisited: What a Difference Five Years Can Make. The Modern Law Review 62: 609–613.

    Article  Google Scholar 

  • Gu, Yuefei. 2017. Controversies Arising from Art 24 of the 2003 Judicial Interpretation and Numerous Cases Brought against Non-borrowing Spouses after Divorce. XinJing Bao [New Beijing Daily], 17 January. http://www.chinanews.com/gn/2017/01-17/8126228.shtml. Accessed 8 August 2021.

  • Hon, Justice Kiefel. 2000. Guarantees by Family Members and Spouses: Garcia and a German Perspective. Australian Law Journal 74: 692–706.

    Google Scholar 

  • Ho, Lusina. 2002. Undue Influence: When and How it Matters to Banks and Solicitors: Royal Bank of Scotland plc v Etridge (No. 2). Singapore Journal of Legal Studies: 617–630.

  • Ho, Martin Cheuk Hang. 2011. Protecting Wife-Sureties from ‘Sexually Transmitted Debts’ Importing the Australian Special Equity Theory into Hong Kong. Hong Kong Legal Studies 5: 49–77.

    Google Scholar 

  • Howell, Nicola. 1995. ‘Sexually Transmitted Debt’ A Feminist Analysis of Laws Regulating Guarantors and Co-Borrowers. Australian Feminist Law Journal 4: 93–109.

    Article  Google Scholar 

  • Huang, Shuo. 2010. Housing and Marriage. China Daily, 23 December. https://www.chinadaily.com.cn/opinion/2010-12/23/content_11746124.htm. Accessed 8 August 2021.

  • Jiang, Dawei. 2013. Introspection and Reconstruction of the Identification Rules of Joint Marital Debts in China [Woguo Fuqi Gongtong Zhaiwu Rending Guize de Fansi Yu Zhonggou]. Journal of Southwest University of Political Science & Law 15 (4): 31–37.

    Google Scholar 

  • Ji, Yingchun, et al. 2017. Unequal Care, Unequal Work: Toward a More Comprehensive Understanding of Gender Inequality in Post-Reform Urban China. Sex Roles 77: 769–772.

    Article  Google Scholar 

  • Kapai, Puja. 2019. Undue Influence and Unconscionability in Comparative Common Law: Delivering Contextualised Justice for Minority Sureties. Transnational Law and Contemporary Problems 28: 361–448.

    Google Scholar 

  • Kaye, Miranda. 1997. Equity’s Treatment of Sexually Transmitted Debt. Feminist Legal Studies 5 (1): 35–55.

    Article  Google Scholar 

  • Kim, Nancy S. 2019. Consentability: Consent and its Limits. Cambridge: Cambridge University Press.

    Book  Google Scholar 

  • Kimmel, Michael S. 2000. The Gendered Society. Oxford: Oxford University Press.

    Google Scholar 

  • Li, Ke. 2015. ‘What He Did Was Lawful’: Divorce Litigation and Gender Inequality in China. Law and Policy 37: 173.

    Article  Google Scholar 

  • Li, Xiaorong. 1995. Gender Inequality in China and Cultural Relativism. In Women, Culture, and Development: A Study of Human Capabilities, ed. Martha C. Nussbaum and Jonathan Glover, 407–424. Oxford: Clarendon Press.

    Chapter  Google Scholar 

  • Lucy, William., and Alexander, Williams. 2013. Public and Private: Neither Deep nor Meaningful? In Private Law Key Encounters with Public Law, ed. K. Barker and D. Jensen. New York: Cambridge University Press. 45–88.

    Chapter  Google Scholar 

  • Mihaila, Carmen Oana. 2018. Contractual Matrimonial Regimes in the Legislation of Different States. Annales Universitatis Apulensis Series Jurisprudentia 21: 184–185.

    Google Scholar 

  • Millbank, Jenni., and Jenny, Lovric. 2003. Darling Please Sign this Form: A Report on the Practice of Third Party Guarantees in NSW, NSW Law Reform Commission Report 107, 2006. November. https://www.lawreform.justice.nsw.gov.au/Documents/Publications/Reports/Report-107.pdf. Page 149. Accessed 8 August 2021.

  • Morgan, Jenny. 1988. Feminist Theory Is Legal Theory. Melbourne University Law Review 16: 743–759.

    Google Scholar 

  • Morris, Debra. 1999. Wives Are Told: Don’t Blame the Bank, Sue Your Solicitor: Royal Bank of Scotland v. Etridge (No. 2) and Other Appeals [1998] 4 All E.R. 705. Feminist Legal Studies 7 (2): 193–202.

    Article  Google Scholar 

  • Morris, Debra. 2003. Surety Wives in the House of Lords: Time For Solicitors to `Get Real’? Royal Bank of Scotland Plc v. Etridge (No. 2) [2001] 4 All E.R. 449. Feminist Legal Studies 11 (1): 57–69.

    Article  Google Scholar 

  • Ning, Guangjie. 2011. The Gender Wage Gap in China and Its Decomposition: To What Extent Does Gender Discrimination Exist? [Zhongguo de Gongzi Xingbie Chaju Ji Qi Fenjie: Xinbie Qishi Zai Duoda Chengdu Shang Cunzai?]. World Economic Papers 2 (2): 19–34.

    Google Scholar 

  • Ogletree, Charles J. Jr., and Rangita de Silva-de Alwis. 2003. The Recently Revised Marriage Law of China: The Promise and the Reality. Texas Journal of Women and the Law 13: 251–312.

    Google Scholar 

  • Okin, Susan Moller. 1995. Inequalities Between the Sexes in Different Cultural Contexts. In Women, Culture, and Development: A Study of Human Capabilities, ed. Martha C. Nussbaum and Jonathan Glover, 275–292. Oxford: Clarendon Press.

    Google Scholar 

  • Ran, Keping. 2018. Type and Payment of Joint Marital Debt: Analysis Judicial Interpretation [2018] No. 2 [Lun Fuqi Gongtong Zhaiwu de Leixin Yu Qingchang-Jian Xi Fashi [2018] 2 Hao]. Fa Xue [law] 6 (6): 67–79.

    Google Scholar 

  • Santow, G.F.K. 1999. Sex, Lies and Sureties – Touching the Conscience of Creditors. Journal of Banking and Finance Law and Practice 10: 7–23.

    Google Scholar 

  • Shi, Lei. 2013. Balancing Different Rights in Families: Did the Third Judicial Interpretation of the Marriage Law of the PRC Achieve Its Goals? International Journal of Law, Policy & the Family 27 (3): 381–398.

    Article  Google Scholar 

  • Smart, Carol. 1984. Marriage, Divorce and Women’s Economic Dependency: A Discussion of the Politics of Private Maintenance. In The State, the Law and the Family, ed. Michael D A Freeman. Michael, 9–24. London: Tavistock.

  • Stavrianou, Angela. 2007. Expanding the Equitable Doctrine of Wife’s Special Equity. Journal of Banking and Finance Law and Practice 18: 105–122.

    Google Scholar 

  • Tian, Shaohua. 2019. Paying the Joint Marital Debts in the Contexts of Joint Marital Property [Lun Gongtong Caichang Zhi Xia de Fuqi Zhaiwu de Qingchang]. Falv Kexue [Legal Science] 5 (5): 182–190.

    Google Scholar 

  • Wang, Geya. 2019. Codification Strategy and Institutional Trend of the Family Law Chapter of Chinese Civil Code [Minfadian Hunyin Jiating Bian de Bianzuan Celue Yu Zhidu Zouxiang]. Falv Kexue [Legal Science] 6: 88–96.

    Google Scholar 

  • Woo, Margaret Y.K. 2003. Shaping Citizenship: Chinese Family Law and Women. Yale Law Journal 15: 99–134.

    Google Scholar 

  • Xiang, Dong. 2019. Legislative Review and Institutional Reflection on Marital Joint Debts [Fuqi Gongtong Zhaiwu Lifa Jianshi Yu Zhidu Fansi]. Academic Exploration [Xueshu Tansuo] 11: 106–112.

    Google Scholar 

  • Yang, Tianchi, and Yin Zhou. 2019. Does the ‘Two Child’ Policy Exacerbate the Gender Income Gap? [Liang Hia Zhengce Shifou Jiajule Xingbie Shouru Chaju?]. Population & Development [Renkou Yu Shehui Fazhang] 25: 52–64.

    Google Scholar 

  • Zhang, Mo. 2006. Chinese Contract Law: Theory and Practice. First Edition. Leiden, The Netherlands: Brill | Nijhoff.

    Book  Google Scholar 

  • Zhang, Xuejun. 2019. A Legislative Study on the Payment of the ‘Personal Debt’ of Chinese Couple [Zhongguo Fuqi Yifang ‘Geren Zhaiwu’ de Zeren Caichang Zhi Lifa Yanjiu]. Modern Law Science [Xiandai Faxue] 6 (6): 3–13.

    Google Scholar 

  • Zhu, H. 2019. Specific Types and Liabilities of Husband and Wife Debt [Fuqi Zhaiwu de Juti Leixing he Zeren Chengdan]. Law Rev [Faxue Pinlun] 217: 44–58.

    Google Scholar 

Download references

Acknowledgements

The authors wish to thank the insightful comments from the two anonymous reviewers and from Professors Kwai Hang Ng, He Xin and Prue Vines on earlier versions of the paper. Thanks are also due, in this four-year project, to the dedicated research assistance of, Mengting Gui, Zidi Huang, Yuxiao Qu, Weixie Peng and Wanling Zhou who helped to conduct the three surveys, and Lesley Adukonu and Kate Freedman from Australian Catholic University for library assistance. This paper is for our daughters.

Author information

Authors and Affiliations

  1. University of Sydney Law School, Camperdown, Australia

    Jie Huang

  2. Thomas More Law School, Australian Catholic University, North Sydney, Australia

    May Fong Cheong

Authors
  1. Jie Huang
    View author publications

    You can also search for this author in PubMed Google Scholar

  2. May Fong Cheong
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Jie Huang.

Additional information

Publisher's Note

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Appendices

Appendices

A. Preliminary survey

See Table 5.

Table 5 Distribution of the judgments per year in the preliminary survey
Full size table

In China, the first trial of MTD cases begins at the Basic People’s Courts. A losing party may appeal the judgment of a Basic People’s Court to an Intermediate People’s Court. The judgments issued by the Intermediate People’s Court are final. Therefore, the fact that a high percentage of the final judgments were rendered by the Intermediate People’s Courts demonstrates a high rate of appeal in MTD cases. In rare circumstances, Chinese Civil Procedure Law allows retrials of cases under the trial supervision procedures, which may be conducted by the Higher People’s Courts.Footnote 71 The survey also shows that 12% of the judgments were retrials by the Higher People’s Courts, which further demonstrates the controversies surrounding MTD cases (see Table 6).

Table 6 Level of court in the preliminary survey
Full size table

Mainland China has 32 provincial administrative districts.Footnote 72 We found that the judgments covered 24 provincial administrative districts, which are economically developed areas where spouses as a family unit may more often conduct economic activities (see Table 7).

Table 7 Geographic distribution of the judgments in the preliminary survey
Full size table

B. The 2017 survey

See Tables 8 and 9.

Table 8 Level of court
Full size table
Table 9 Geographic distribution of the judgments
Full size table

C. The 2018 survey

See Tables 10 and 11.

Table 10 Level of court
Full size table
Table 11 Geographic distribution of the judgments
Full size table

Rights and permissions

Reprints and permissions

About this article

Check for updates. Verify currency and authenticity via CrossMark

Cite this article

Huang, J., Cheong, M.F. Marriage Transmitted Debt in the Chinese Civil Code: The Beginning of a Solution Rather than the End. Fem Leg Stud 30, 1–27 (2022). https://doi.org/10.1007/s10691-021-09472-4

Download citation

  • Accepted:

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s10691-021-09472-4

Keywords

Search

Navigation