摘要
夫妻共同债务清偿规则背后的价值乃是债权人利益实现和夫妻家庭保护的利益衡量。学术界对此存在不同观点,主要包括连带债务说,共同债务说和类型区分说。其中类型区分说较好地平衡了债权人利益和举债方夫妻的利益,因此更为可取。首先,根据夫妻是否达成合意,夫妻共同债务可以分为合意型债务和单方型债务,合意型债务符合债法的一般规定,夫妻应当对此承担连带责任,责任财产的范围包括夫妻所有财产,并且不存在清偿顺序的限制;其次单方型债务中以是否为家庭日常生活需要为标准区别安排,日常生活范围内的负债和合意型债务相同处理;最后,超出日常家庭生活范围的夫妻共同生活、共同生产经营负债属于共同债务,责任财产包括夫妻共同财产和举债方个人财产,以夫妻共同财产优先清偿。
The value behind the couple debt settlement rule is the realization of the interests of creditors and the measurement of the interests of the couple family protection. There are different viewpoints in academic circles, including joint debt theory, common debt theory and type division theory. Among them, the type division theory better balances the in-terests of creditors and the interests of the debtor, so it is more desirable. First of all, according to whether the couple reach an agreement or not, the common debt of the couple can be divided into consensual debt and unilateral debt. Consensual debt conforms to the general provisions of the debt law, the couple should bear joint liability for this, the scope of the liability property includes the property owned by the couple, and there is no restriction on the order of settlement. Secondly, uni-lateral debt takes whether it is the needs of family daily life as the standard to distinguish the ar-rangement, and debts within the scope of daily life and consensual debt are treated in the same way. Finally, the joint living, production and operation debts of couple beyond the scope of daily family life belong to the common debts. The liable property includes the common property of couple and the personal property of the debtor, and the common property of couple shall have priority in settlement.
出处
《争议解决》
2023年第3期742-748,共7页
Dispute Settlement
