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新婚姻法夫妻共同债务的法律适用

发布时间:2019-01-11 09:48
关于新婚姻法中夫妻共同债务的法律适用 我国新婚姻法第四十一条规定:离婚时,原为夫妻共同生活所负的债务,应当 共同偿还。如共同财产不足清偿的或财产归各自所有的,由双方协议清偿,协议不成,由人 民法院判决。由此可看出, “为夫妻共同生活所负的债务” ,应视为夫妻共同债务。夫妻共同 债务一般包括:因日常生活所负的债务;因生产经营所负的债务;夫妻双方或一方因治疗疾 病所负的债务。从审判实践中看,随着人们生活水平的提高,离婚纠纷中的共同债务的认定 及处理表现的越来越复杂,越来越突出。因此,在审判实践中应怎样认定和处理好离婚纠纷 中夫妻共同债务的具体情况,很值得探讨。下面笔者结合审判实践经验,对离婚案件中夫妻 共同债务的认定及处理原则谈几点粗浅的看法,供同仁们参考。
 
Article 41 of the New Marriage Law of China stipulates that when divorce occurs, debts originally incurred by couples living together shall be repaid jointly. If the common property is insufficient to be liquidated or the property belongs to each other, it shall be liquidated by agreement between the two parties. If the agreement fails, the people's court shall decide. It can be seen from this that "debts incurred for the joint life of husband and wife" should be regarded as joint debts of husband and wife. The common debts of husband and wife generally include: debts due to daily life; debts due to production and operation; debts due to the treatment of diseases by both husband and wife or one party. From the trial practice, with the improvement of people's living standards, the recognition and treatment of common debt in divorce disputes are becoming more and more complex and prominent. Therefore, it is worth discussing how to identify and deal with the specific situation of joint debts between husband and wife in divorce disputes in judicial practice. Following, the author combines the trial practice experience to discuss some superficial views on the determination and treatment principle of the joint debt of husband and wife in divorce cases for colleagues'reference.
 
 
 
一、在认定和处理夫妻共同债务中存在的问题 法律特别是修改后《婚姻法》 ,以及司法解释,为处理夫妻共同债务提供了法律依据, 然而这些规定都欠具体、详细,缺乏可操作性,因此在审判实践中存在不少问题。
 
First, the law, especially the revised Marriage Law and judicial interpretation, provide the legal basis for dealing with the joint debts of husband and wife. However, these Provisions are not specific, detailed and operable, so there are many problems in judicial practice.
 
 
 
其主要问题是: 1、夫妻共同债务难以认定 在婚姻关系存续期间的初期,夫妻双方往往由于夫妻感情融洽,互相信任,互相忠实, 不可能预见未来的离婚,更不可能虑及离婚时债务的分担问题。所以,平常就在主观上不愿 意,在客观上也不注意收集和保存自己所借、所欠,以及经营风险可能形成的夫妻共同债务 的相关证据。一旦提起离婚诉讼,另一方往往从自己的利益出发,否认债务。一个典型的案 例很能说明问题。李煜与林英华自由恋爱结婚,夫妻感情很好,李煜欲出国打工,委托林英 华向外借款。林英华以自己名义借现金 10 万元交付丈夫,夫妻双方未交接收据。在离婚诉 讼中,丈夫坚决否认收受妻子的借款。根据 “谁主张,谁举证”的民事诉讼举证规则,主张 权利的一方必然承担了举证不能的法律后果, 法庭不可能支持无证据证明的诉讼主张。 事实 上,往往主张夫妻共同债务的一方对家庭的贡献大,诉讼结果却反而对他不利。在这种情况 下,法院判决的结果虽凭证据,但是未能合情合理,难以收到良好的社会效果。
 
The main problems are as follows: 1. It is difficult to identify the joint debts of husband and wife in the early period of marriage. Owing to the harmonious relationship, mutual trust and loyalty between husband and wife, it is impossible to foresee future divorce, let alone consider the problem of debt sharing in divorce. Therefore, in general, they are unwilling subjectively and objectively to collect and preserve relevant evidence of their debts, debts and joint debts that may be formed by business risks. Once a divorce lawsuit is filed, the other party tends to deny the debt in its own interest. A typical case illustrates the problem. Li Yu and Lin Yinghua are free to love and marry. They have a good relationship. Li Yu wants to work abroad and entrusts Lin Yinghua to borrow money from abroad. Lin Yinghua paid her husband 100,000 yuan in cash in her own name. The husband and wife did not submit receipts. In divorce proceedings, the husband firmly denied accepting his wife's loan. According to the rule of "who claims, who evidences", the party claiming the right must bear the legal consequences of the incapacity of proof, and the court can not support the claim without proof. In fact, the party who advocates the joint debt of husband and wife contributes a lot to the family, but the result of the lawsuit is not good for him. In this case, although the results of court decisions are based on evidence, they are not reasonable and difficult to receive good social effects.
 
 
 
2、第三人的债权保护不力 修改后的婚姻法第四十一条虽然规定了夫妻共同债务的处理依据, 但是并没有明确规定 夫妻双方在婚姻关系存续期间或离婚后,对外应承担何种责任。
 
2. Article 41 of the Marriage Law, which has been amended inadequately to protect the creditor's rights of the third party, stipulates the basis for dealing with the joint debts of the husband and wife, but it does not specify what kind of responsibility the husband and wife should bear to the outside world during the duration of the marriage or after divorce.
 
 
 
在实践中适用起来,难免各 行其事,自以为是,有损法律的严肃性和统一性。下面,分别不同情形论述。
 
When applied in practice, it is unavoidable to do everything in one's own way. Being self-righteous is detrimental to the seriousness and unity of the law. Next, the different situations are discussed.
 
 
 
(1)夫妻关系存续期间负有共同债务,第三人即债权人只起诉夫妻中的一方,法院支 持债权人的诉求, 判决夫妻中的一方承担债务。 在执行程序中, 法院强制执行夫妻共同财产, 或对列为被执行人的夫妻一方采取强制措施。 法院判决在实体和程序上的处理均有可商榷之 处。在实体上,未明确认定属于个人债务还是属于共同债务,在程序上未考虑夫或妻的另一 方是否确属必要的共同被告, 是否有必要决定追加为共同被告参加诉讼。 诉讼与执行变成两 张皮,不完全吻合。夫或妻的另一方只承担了有限的“共担”责任,第三人的债权不能获得 有效保护。
 
(1) During the period of marital relationship, the third party, the creditor, only sues one of the spouses. The court supports the creditor's claim and judges one of the spouses to bear the debt. In the execution procedure, the court enforces the joint property of husband and wife or takes compulsory measures against the spouse listed as the executed party. The substantive and procedural treatment of court judgments is questionable. In substance, it is not clear whether it belongs to personal debt or joint debt. In procedure, it is not considered whether the other party of the husband or wife is really the necessary co-defendant and whether it is necessary to decide whether it is necessary to add to the lawsuit for the co-defendant. Litigation and execution become two skins, which do not completely coincide with each other. The other side of the husband or wife only bears limited "shared" responsibility, and the creditor's rights of the third party can not be effectively protected.
 
 
 
(2)夫妻关系存续期间负有共同债务,债权人只起诉夫妻中的一方,法院支持债权人 的主张,判决夫妻中的一方承担债务。离婚后,在执行程序中,法院强制执行列为被执行人 的原夫妻中的一方的个人财产,或者只对其采取强制措施。这种情形的判决与前述相同,在 执行中债权人处于更加不利的地位。
 
(2) During the period of marital relationship, the creditors only sue one of the spouses. The court supports the claim of the creditors and judges one of the spouses to bear the debt. After divorce, in the execution procedure, the court enforces the personal property listed as one of the original couples of the executed person, or only takes compulsory measures against it. In this case, the judgment is the same as that mentioned above, and the creditor is in a more disadvantageous position in the execution.
 
 
 
(3)夫妻关系存续期间负有共同债务,离婚后,债权人起诉原夫妻双方。在庭审中未 在债权文书签署的原夫妻一方否认属于共同债务, 债权人是难以举证证明他们的债务确属用 于家庭夫妻共同生活的,共同债务变成了个人债务。
 
(3) The creditor shall sue the original couple after divorce for joint debts incurred during the duration of the husband-wife relationship. In the court hearing, the original spouse who has not signed the creditor's rights document denies that they belong to the common debt. Creditors are difficult to prove that their debts belong to the common life of family couples. The common debt becomes personal debt.

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