司法实践中夫妻共同债务的认定规则及重构

发布时间：2019-01-17 19:12

【摘要】：在司法实践中,夫妻共同债务的认定一直是一个难题。《婚姻法解释二》的颁布为司法实践中夫妻共同债务的认定提供了操作性较强的法律依据,在具体案件中大多涉夫妻共同债务认定的案件也是以此规定为依据进行判决。《婚姻法解释二》的颁布一定程度上解决了夫妻共同债务的认定问题,但在以此规定为夫妻共同债务认定依据时,审判人员不得不面临一个新的问题,当今中国离婚率居高不下,夫妻间的共同体特性逐渐减弱,而独立性却越发明显,如果仅以《婚姻法解释二》的规定来认定夫妻共同债务,一方面夫妻非举债方个人独立人格得不到体现,夫妻非举债方权益得不到公平的保护：另一方面无法避免夫妻一方恶意举债或夫妻一方与第三人恶意串通以损害夫妻另一方利益的情形。夫妻非举债方如果未因配偶的举债而获益,却要为配偶的举债而承担偿还责任,对夫妻非举债一方来说,显然不公平。本文立足于司法实践,通过对相关案例及判例的数据进行分析,找出实务中处理涉夫妻共同债务问题的困惑及困惑的成因,并结合夫妻债法的相关法学理论及审判经验,以夫妻共同债务理念为根本,明确夫妻共同债务的概念及具体内容。以举债数额的多少为标准,公平合理分配夫妻共同债务的举证责任,并为夫妻共同债务的立法提出新的设计方案,以期债权人、夫妻举债方和夫妻非举债方三方权益能得到公平合理的保护。
[Abstract]:In judicial practice, the identification of joint debt between husband and wife has always been a difficult problem. The promulgation of interpretation 2 of Marriage Law provides an operational legal basis for the determination of joint debt between husband and wife in judicial practice. In the specific cases, most cases involving the determination of joint debt between husband and wife are also based on this stipulation. The promulgation of interpretation 2 of the Marriage Law has to a certain extent solved the problem of determining the joint debt of the husband and wife. However, in accordance with this stipulation, judges have to face a new problem. Nowadays, the divorce rate in China is high, the community identity between couples is gradually weakening, but their independence is becoming more and more obvious. If only the provisions of interpretation 2 of the Marriage Law are used to determine the joint debt of the husband and wife, on the one hand, the individual independent personality of the couple who is not a borrower is not reflected. The rights and interests of the spouses are not protected fairly: on the other hand, it is impossible to avoid the malicious borrowing of one spouse or the malicious collusion of the husband and wife with the third party to harm the interests of the other. It is clearly unfair for a non-borrower to assume responsibility for a spouse's debt if he or she does not benefit from a spouse's debt. Based on judicial practice, this paper analyzes the data of relevant cases and precedents, finds out the causes of confusion and confusion in dealing with the joint debt problem of husband and wife in practice, and combines the relevant legal theory and trial experience of husband and wife debt law. Based on the concept of joint debt of husband and wife, the concept and concrete content of joint debt of husband and wife are clarified. On the basis of the amount of debt borrowed, the burden of proof for the fair and reasonable distribution of the joint debt of the husband and wife is allocated, and a new design scheme is proposed for legislation on the joint debt of the husband and wife, with a view to creditors, The tripartite rights and interests of the borrower and the non-borrower can be protected fairly and reasonably.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.9

【相似文献】