摘要
近二十年来,围绕夫妻一方因购买生产资料、从事工商业投资经营而发生的债务是否构成夫妻同债务问题,法学界、司法审判中的认识历经多次变化,至今仍存争议。从公平原则和保护弱者权益等要素考虑,一概要求配偶一方为另一方生产经营债务承担无限连带清偿责任,无疑将配偶身份与共同投资人、担保人等商身份混同,明显不合理。共享利益、共担责任的推定将婚姻类比经营实体,忽视了婚姻实体具有的情感与伦理本质。将夫妻一方生产经营所负债确定为当事人个人债务,法律另有规定的除外,符合市场经济环境中的现代理性人的一般认知,对债权人、举债配偶和非举债配偶三方是最大限度公平。
It is a big debate that whether the debt of the husband or wife due to purchasing the means of production and engaging in industrial and commercial actions constitutes the joint debt of the husband and wife,for that the rules from the Supreme People Court have been amended several times in the past 20 years.Based on fairness principle and the protection of the rights and interests of the weak,it is obviously unreasonable to force one spouse to bear unlimited joint liability for the debts on production and business engaged by another spouse.The presumption that both as spouses have to take responsibilities jointly while their sharing interests of debt with business entity ignores the emotional and ethical nature of marriage.The liabilities of debt on production or business by a husband or wife only shall be determined as the personal debts of the party concerned,unless there are the followings including both spouses joint will or the borrowed money used for joint production or business stipulated a husband and wife.That will be the maximum fairness to the creditor,the spouse as a debtor and the non-debt spouse in line with the general cognition of modern rational people in the market economy.
作者
蒋月
陈璐
Jiang Yue;Chen Lu
出处
《现代法治研究》
2020年第1期58-69,共12页
Journal of Modern Rule of Law
关键词
家庭法与商法交叉
夫妻一方生产经营性债务
个人债务
公平分摊风险
Intersection of Family law and Commercial Law
Production and Business Debt of Husband or Wife
Personal Debt
Fair Liability of Risk
作者简介
蒋月,厦门大学法学院教授、博士研究生导师;陈璐,厦门大学法学院民商法专业2019级博士研究生。
