A Comparative Study on Regulations for the Debts on Husband and Wife in Civil Codes Overseas: Enlightenments to Improve Related Legislation of China
- 法学院－已发表论文 
在域外的多部民法典中,确立夫妻债务规则的立法模式可划分四类,其中在夫妻财产制中规定对外财产责任最为常见。实行不同种类夫妻财产制,配偶之间负担对外财产责任有别。夫妻共同债务范围可区分为大、中、小、超小四种法例。配偶承担连带责任的债务通常限于共同生活的必要、共同财产所生债务、夫妻合意之债,且夫妻对半负担共同债务之清偿责任;个人财产仅在特定情形下对共同债务承担补充责任。夫妻一方个人债务由本人负责清偿。夫妻共同财产或者配偶一方个人财产清偿了另一方配偶个人债务的,获益配偶方应予以补偿。基于保障对外财产责任履行和配偶另一方利益等考虑,立法禁止或限制配偶一方擅自处分、让与其财产或财产利益。我国制定民法典婚姻家庭编确定夫妻对外财产责任时,既要充分考虑夫妻均是独立个体,有各自的个人利益,又要考虑夫妻是婚姻共同体的成员,彼此具有共同利益;坚持民事主体地位平等,既合理分配夫妻对财产责任负担,又要公平保护第三人权益。Based on statistics and analysis of 9 Civil Codes overseas,there are four legislative models to establish the rules which define and distribute liability of debts borrowed by a husband or wife only,and the most usual one is within a matrimonial property regime. Each party＇s liability to the third person is different from the other in the system implementing different matrimonial property regimes. There can be classified into four types of regulations,which are identified on large,medium,small and miniature scope of common debts. The liability of spouses to be severally liable is limited to the following three categories： firstly the debt resulting of the family life together; secondly,the debt caused by the common property; and thirdly,the debt on their concern by both the husband and wife. In the usual circumstances,each spouse should take liability for half share of debt jointly by husband and wife. Supplementary responsibility to the common debt only is put on the personal property in very special cases. A husband or wife is liable for his or her own personal debt by the personal property. The beneficial spouse should compensate if the common property or the other party＇s personal property is used to pay for the other party＇s personal debt. Based on the interests of another spouse and a creditor,there are some necessary legislative limits on a spouse to arbitrarily dispose of his or her property or property interests. Those reasonable rules governing liability of matrimonial debts should be introduced into family law of the Civil Code of China which is going to be established in the coming years. Because husband and wife are independent individuals equally,who have their interests jointly but his or her own personal interests. There is necessity for current law to keep an interest balance between spouses and creditor.