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虚构夫妻共同债务怎么办

发布时间:2019-01-11 09:47
虚构夫妻共同债务,是指夫妻共同债务并不实际存在而是一方为了获得更多利益捏造的利益,那虚构夫妻共同债务怎么办?接下来由小编为大家整理了一些关于这方面的知识,欢迎大家阅读!
 
Fictitious joint debt of husband and wife refers to the fact that the joint debt of husband and wife does not actually exist, but the fabricated interests of one party in order to obtain more benefits. What about fictitious joint debt of husband and wife? Next, by the small edition for you to sort out some knowledge about this, welcome to read!
 
 
 
 
 
在离婚诉讼中,对于双方当事人共同认可的共同债务,应当予以认定,并以判决或调解的方式明确双方应承担的份额。而对于未经夫妻双方共同认可的债务应一律不予处理。
 
In divorce proceedings, the joint debts recognized by both parties should be recognized, and their share should be defined by judgment or mediation. Debts that are not recognized by both husband and wife shall not be dealt with.
 
 
 
因为我国《婚姻法》及相关司法解释中关于夫妻共同债务的规定,其本意在于优先保障债权人的利益实现并明确夫妻离婚后的还债义务,保护交易安全、促进财产流转。在夫妻双方对共同债务共同认可的情况下,对债务及其在夫妻间的分担以判决书或调解书的形式予以确定,应该还具有保全证据的意义。它可以有效防止双方离婚后,由于个人经济条件等因素的变化,对本无争议的事实以不诚信的态度予以否认、混淆,影响司法机关对债权债务关系及其性质的认定,进而使债权人的利益无法保障。
 
Because of the provisions of the Marriage Law and related judicial interpretations on the joint debts of husband and wife, the original intention is to give priority to the realization of creditors'interests and to clarify the obligations of repayment of debts after divorce, to protect the safety of transactions and to promote the transfer of property. In the case that both husband and wife agree on the joint debt, it should also have the significance of preserving evidence to determine the debt and its share between husband and wife in the form of judgment or mediation. It can effectively prevent the change of personal economic conditions and other factors after divorce, deny and confuse the undisputed facts in an dishonest manner, and affect the judicial organs'recognition of the relationship between creditors' rights and debts and its nature, thus making the interests of creditors unable to be guaranteed.
 
 
 
但是,当夫妻双方在离婚诉讼中对夫妻共同债务的有无产生争执时,法院再花费大量的时间和资源,去审查债务的真实性及数额的确定性,并对债务如何在夫妻之间承担予以确定,却得不偿失。因为,如前所述,夫妻生活具有隐秘性,是否确有负债、负债原因为何、负债所得财产是否用于夫妻共同生活,难以掌握到法律上足以确信的全面、有效的证据。此时对债务的真实性及分担份额进行判决,就有可能掉入当事人设下的虚构夫妻共同债务的陷阱,而对债务的不当处理也会引起再审程序的启动,这种现象的出现比例即使不高,也足以影响司法的权威。如此,则不如对未经夫妻双方共同认可的债务应一律不予处理,这样做既有理论依据,也符合现实情况,是一种针对虚构夫妻共同债务现象的有效对策。
 
However, when there is a dispute between husband and wife in divorce proceedings, the court spends a lot of time and resources to examine the authenticity and amount of debt, and to determine how the debt should be borne between husband and wife, but it is not worth the loss. Because, as mentioned above, the life of husband and wife is secretive, whether there are liabilities, the reasons for liabilities, and whether the property derived from liabilities is used for the life of husband and wife, it is difficult to grasp comprehensive and effective evidence that is legally convincing. At this time, judgment on the authenticity and share of debt may fall into the trap of fictitious joint debts of husband and wife set by the parties, and improper treatment of debts will also lead to the start of retrial proceedings, which can affect the judicial authority even if the proportion is not high. In this way, it is better not to deal with the debts that have not been recognized by both spouses. This is not only a theoretical basis, but also a realistic situation. It is an effective countermeasure to the fictional phenomenon of joint debts between spouses.
 
 
 
司法实践的一般做法及困扰
 
General Practice and Puzzlement of Judicial Practice
 
 
 
司法实践中,出于追求司法公正、维护法律权威的考虑,法官对于离婚案件一方当事人提出的己方亲友为债权人的所谓夫妻共同债务的认定往往采取审慎的态度。如果没有记载款项进出的银行帐户、存折等强有力的证据佐证,即使该方出具有自己签字而由亲友保存的借据并有其亲友出庭作证,法院在判决中也经常以“证据不足,不予采信”作为对该项主张的答复。法官如此处理的考量无疑有其合理性,因为如果在与客观事实不符的情况下认定了夫妻共同债务,势必使另一方的合法权益受损,更助长了虚构债务这一不法行为的蔓延。
 
In judicial practice, in order to pursue judicial justice and safeguard legal authority, judges often take a prudent attitude towards the determination of the so-called joint debts of husband and wife, in which one party in a divorce case puts forward his or her relatives and friends as creditors. If there is no strong evidence to support such a claim as bank accounts and passbooks recording the entry and exit of funds, the court often replies to this claim with "insufficient evidence and no acceptance" in its judgment even if the party gives a borrowing document which has its own signature and is kept by relatives and friends and has relatives and friends to testify in court. It is undoubtedly reasonable for judges to deal with it in this way, because if the joint debts of husband and wife are recognized in the case of inconsistency with the objective facts, the legitimate rights and interests of the other party will be damaged, and the spread of the illegal act of fictional debts will be further promoted.
 
 
 
但是,法官仅仅出于怀疑和推测而对此类债务不做认定似乎在法律适用上也有所欠缺。《婚姻法解释(二)》第24条规定“债权人就婚姻关系存续期间夫妻一方以个人名义所欠债务主张权利的,应当按夫妻共同债务处理。但夫妻一方能够证明债权人与债务人明确约定为个人债务,或者能够证明属于婚姻法第十九条第三款规定情形的除外。”依照此规定结合《民事诉讼法》及证据规则,一方出具有自己签字而由亲友保存的借据并有其亲友出庭作证,法院却仍以证据不足为由,不采信存在夫妻共同债务的主张,又有加重该方举证责任的嫌疑。
 
However, judges do not recognize such debts only out of suspicion and speculation, which seems to be inadequate in the application of law. Article 24 of Interpretation (2) of Marriage Law stipulates that "creditors'claims on debts owed by one spouse in his or her personal name during the period of marriage shall be handled in accordance with the joint debts of the spouse. However, except where one spouse can prove that the creditor and the debtor have explicitly agreed to be personal debts, or can prove that they belong to the circumstances specified in Article 19, paragraph 3, of the Marriage Law." In accordance with this provision, in combination with the Civil Procedure Law and the rules of evidence, a party gives a borrowed evidence which has its own signature and is preserved by relatives and friends, and its relatives and friends testify in court. However, the court still refuses to accept the claim of joint debts between husband and wife on the grounds of insufficient evidence and suspects that the burden of proof of the party is aggravated.

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