论我国夫妻共同债务的认定

发布时间：2018-09-11 19:22

【摘要】：随着市场经济的繁荣发展,家庭作为市场经济主体更多地参与到市场经济往来中,进而发生债权债务关系。如何对夫妻共同债务进行认定关系到债权人债权的实现,也关系着社会的交易安全,对于市场经济的健康发展起着重要的作用。而我国的立法对于夫妻共同债务的规定非常不完善,对于其规定存在瑕疵或者说观点不一,这就容易导致在司法实践中出现不公正不合理的审判,既没有达到保护当事人正当利益的目的,也践踏了司法的尊严。因此,如何科学地完善对于夫妻共同债务相关规定,是眼下当务之急。本文将从性质、标准及范围这三个方面来探讨夫妻共同债务。通过采用比较研究、实证研究、逻辑分析方法,围绕夫妻共同债务这三个方面,在对我国立法探讨的基础上,分析考察我国现行立法的不足之处,借鉴域外立法经验,结合我国实际情况,提出完善我国夫妻共同债务认定的立法建议。第一部分由两个不同判决结果的案例引出学界关于夫妻共同债务性质认定的争议,即夫妻共同债务的性质究竟是连带债务还是共同债务,笔者在分析两个观点后,赞同共同债务说的观点,并对自己的观点进行论述。第二部分,也同样以案例为起点,先阐述关于夫妻共同债务标准认定的两种不同标准：以法律和司法解释为代表的“目的说”和“名义说”,而后剖析其本质,穿插国外的立法现状,研究国外的立法技术,认为应当对二者进行结合来认定最为妥当,再提出实践中具体的制度完善,例如日常家事代理制度等。第三部分,我国当前的夫妻共同债务的范围以排除夫妻个人债务的方式来确定,但外延太大,基于当前国内与国外立法,笔者给出了几个详细的范围来进行探讨,比如基于管理所生之债、培训之债、休闲娱乐之债等。
[Abstract]:With the prosperous development of market economy, the family, as the main body of market economy, is more involved in the market economy, and then the creditor's rights and debts are related. How to identify the joint debt of husband and wife is related to the realization of creditor's rights and the social transaction security, and plays an important role in the healthy development of market economy. However, the legislation of our country is not perfect in the regulation of the joint debt of husband and wife. There are some flaws or different views on the regulation, which will easily lead to unfair and unreasonable trial in judicial practice. Neither to achieve the purpose of protecting the legitimate interests of the parties, but also trampling on the dignity of the judiciary. Therefore, how to scientifically perfect the related provisions for husband and wife joint debt, is the urgent matter of the moment. This article will discuss the common debt of husband and wife from three aspects: nature, standard and scope. By adopting comparative research, empirical research and logical analysis method, focusing on the three aspects of husband and wife's common debt, on the basis of discussing the legislation of our country, this paper analyzes and inspects the shortcomings of the current legislation of our country, and draws lessons from the experience of foreign legislation. According to the actual situation of our country, this paper puts forward some legislative suggestions to perfect the joint debt of husband and wife in our country. In the first part, two cases of different judgment result lead to the controversy about the nature of the joint debt of husband and wife, that is, whether the nature of the joint debt of husband and wife is joint debt or joint debt. Agree with the idea of common debt and discuss your point of view. The second part, also taking the case as the starting point, first expounds two different standards about the determination of the common debt standard of husband and wife: the "aim theory" and "nominal theory" represented by the legal and judicial interpretation, and then analyzes its essence. This paper interspersed the current legislative situation of foreign countries, studied the foreign legislative technology, thought that the combination of the two should be combined to determine the most appropriate, and then put forward the specific system perfection in practice, such as the daily household agency system and so on. The third part, the scope of our country's current husband and wife common debt is determined by excluding the husband and wife individual debt, but the extension is too big, based on the current domestic and foreign legislation, the author gives several detailed scope to discuss. Such as management based debt, training debt, leisure and entertainment debt and so on.
【学位授予单位】：广西师范大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.9

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