夫妻共同债务认定问题及完善对策研究
发布时间：2018-08-11 09:34
【摘要】：近年来,关于夫妻离婚之后无辜“被负债”的报道屡见不鲜,区分夫妻共同债务与个人债务可以很好地遏制这种现象,那么如何进行区分就成了我们所要关注的问题。随着我国婚姻家庭关系的复杂化,夫妻财产关系作为其中重要的部分涌现出了许多的问题。现代社会男女平等,双方均可自由地参与到生产经营活动当中,财产并不必然与从前一样归于夫妻共同财产,并且,我国现在也允许夫妻双方约定财产的归属。在这样的背景下,认定夫妻共同财产有着新的时代意义和必要性。本文主要论述了我国当今认定夫妻共同债务的立法及司法上存在的问题,通过与外国进行比较,发现可以借鉴的内容,进而提出完善对策,文章共分为五个部分:第一部分是绪论部分,主要论述认定夫妻共同债务的意义和必要性,概括了本文写作过程中运用的研究方法,以及国内外学者的一些研究现状。第二部分是我国夫妻共同债务认定的立法现状及存在问题,简单列举了我国有关夫妻共同债务的法条,并在此基础上分析了我国在立法上存在的问题,包括有关的认定标准、家事代理制度、举证责任以及共同债务的清偿和追偿。第三部分是我国夫妻共同债务认定的司法现状及存在问题,由于法律规范的不完备以及其他问题,认定夫妻共同债务在司法实践中也出现了很多的问题,包括因法律规范的冲突引起的同案不同判、夫妻共同债务是否应该区分内外、分居及讼诉离婚期间法律适用不统一以及因侵权行为引起的债务如何认定。第四部分是外国相关法律的研究,因为本文是就夫妻共同债务认定中出现的问题提出针对性的意见,因此在分析时采用的也是就该国家此项制度的专门研究,主要选取的国家是大陆法系的代表国家,更具有借鉴意义。第五部分是认定夫妻共同债务的完善对策,从立法和制度建设两个大的方面出发,寻求针对性的意见。
[Abstract]:In recent years, there are many reports about innocent "being in debt" after divorce, so how to distinguish between husband and wife's common debt and personal debt can well curb this phenomenon, so how to distinguish becomes the problem that we should pay attention to. With the complication of marriage and family relations in our country, the marital property relationship as an important part has emerged many problems. In modern society, equality between men and women, both sides can freely participate in the production and management activities, property does not necessarily belong to the husband and wife as before, and our country now also allows husband and wife to agree on the ownership of property. Under this background, it is necessary and important to determine the joint property of husband and wife. This paper mainly discusses the problems existing in legislation and judicature of recognizing the common debt of husband and wife in our country. By comparing with foreign countries, the author finds out the contents that can be used for reference, and then puts forward some perfect countermeasures. The article is divided into five parts: the first part is the introduction part, which mainly discusses the significance and necessity of recognizing the common debt of husband and wife, and summarizes the research methods used in the process of writing, as well as some domestic and foreign scholars' research status. The second part is the current legislative situation and existing problems of the joint debt between husband and wife in our country. It simply enumerates the articles about the joint debt of husband and wife in our country, and on this basis analyzes the problems existing in the legislation of our country, including the related identification standard. Family agency system, burden of proof and common debt settlement and recovery. The third part is the judicial status quo and existing problems of the joint debt between husband and wife in our country. Due to the imperfection of the legal norms and other problems, there are many problems in the judicial practice of the joint debt of husband and wife. Including different judgments due to the conflict of legal norms, whether the husband and wife should distinguish between internal and external debt, separation and divorce during the application of the law is not uniform and how to determine the debt caused by tort. The fourth part is the study of the relevant laws of foreign countries, because this article is to put forward targeted opinions on the problems arising in the joint debt recognition of husband and wife, so it is also a special study on the system of this country used in the analysis. The main selected country is the representative country of the continental law system, which has more reference significance. The fifth part is to confirm the perfect countermeasure of husband and wife's common debt, from the legislation and the system construction two big aspects, seeks the pertinence opinion.
【学位授予单位】：兰州大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.9
本文编号：2176604
[Abstract]:In recent years, there are many reports about innocent "being in debt" after divorce, so how to distinguish between husband and wife's common debt and personal debt can well curb this phenomenon, so how to distinguish becomes the problem that we should pay attention to. With the complication of marriage and family relations in our country, the marital property relationship as an important part has emerged many problems. In modern society, equality between men and women, both sides can freely participate in the production and management activities, property does not necessarily belong to the husband and wife as before, and our country now also allows husband and wife to agree on the ownership of property. Under this background, it is necessary and important to determine the joint property of husband and wife. This paper mainly discusses the problems existing in legislation and judicature of recognizing the common debt of husband and wife in our country. By comparing with foreign countries, the author finds out the contents that can be used for reference, and then puts forward some perfect countermeasures. The article is divided into five parts: the first part is the introduction part, which mainly discusses the significance and necessity of recognizing the common debt of husband and wife, and summarizes the research methods used in the process of writing, as well as some domestic and foreign scholars' research status. The second part is the current legislative situation and existing problems of the joint debt between husband and wife in our country. It simply enumerates the articles about the joint debt of husband and wife in our country, and on this basis analyzes the problems existing in the legislation of our country, including the related identification standard. Family agency system, burden of proof and common debt settlement and recovery. The third part is the judicial status quo and existing problems of the joint debt between husband and wife in our country. Due to the imperfection of the legal norms and other problems, there are many problems in the judicial practice of the joint debt of husband and wife. Including different judgments due to the conflict of legal norms, whether the husband and wife should distinguish between internal and external debt, separation and divorce during the application of the law is not uniform and how to determine the debt caused by tort. The fourth part is the study of the relevant laws of foreign countries, because this article is to put forward targeted opinions on the problems arising in the joint debt recognition of husband and wife, so it is also a special study on the system of this country used in the analysis. The main selected country is the representative country of the continental law system, which has more reference significance. The fifth part is to confirm the perfect countermeasure of husband and wife's common debt, from the legislation and the system construction two big aspects, seeks the pertinence opinion.
【学位授予单位】：兰州大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.9
【参考文献】
相关期刊论文 前10条
1 李洪祥;;夫妻一方以个人名义所负债务清偿规则之解构[J];政法论丛;2015年02期
2 刘英明;;证据法视角下的夫妻共同债务推定规则[J];学术探索;2014年04期
3 陈汉;;亲属法视野下的人格权冲突——以隐私权为视角[J];浙江工商大学学报;2014年01期
4 姜大伟;;我国夫妻共同债务认定规则的反思与重构[J];西南政法大学学报;2013年04期
5 郭妍;刘曦;;对夫妻共同债务认定规则的反思与重构[J];法制与经济(下旬);2012年02期
6 王瑞;;论夫妻共同债务的认定和清偿[J];法制与社会;2011年26期
7 夏吟兰;;我国夫妻共同债务推定规则之检讨[J];西南政法大学学报;2011年01期
8 陈苇;罗晓玲;;设立我国分居制度的社会基础及其制度构想(上)[J];政法论丛;2011年01期
9 邓世新;;论夫妻共同债务的认定及处理[J];法制与社会;2010年10期
10 郭明瑞;;侵权立法若干问题思考[J];中国法学;2008年04期
，本文编号：2176604
本文链接：https://www.wllwen.com/falvlunwen/hyflw/2176604.html
