民法第1030條之2若干適用或類推適用問題

Some Issues about the Analogical Application of Article 1030-2 of the Civil Code

夫妻一方以其婚後財產清償他方婚前債務所生的債權債務關係尚未償還或補償者，在剩餘財產之分配請求時如何處理，本文區分三個層次。首先，一方以婚後財產清償他方之婚後債務，該債權及債務是否於分配時一併考慮，應採肯定說。其次，就財產或債務是否納入分配或扣除，存在諸多實質說：債務綁財產說，債務綁債務說，本質不變說等等。然而，本文認為實應貫徹形式說而正確適用民法第1030條之2等規定，再進而探詢是否漏洞存在而有類推適用之必要。最後，第1030條之2第1項雖規範夫妻一方以其婚後財產清償其婚前債務，於法定財產制關係消滅時應納入現存之婚後財產計算，但無法直接處理不同法律主體的情形。惟第1030條之2乃處理性質轉變之規定，在配偶以其婚後財產清償他方之婚前債務的情況，即有類推適用第1030條之2的必要，以期正確計算第1030條之1第1項剩餘財產之差額平均分配。

There is an issue about that if the husband or the wife discharged the debts of his or her spouse which incurred before marriage with his or her property acquired in marriage, this property has not yet been made up, how to handle this in the claim of division of marital property. This article resolves this issue by three steps. First, if the husband or the wife discharged the debts of his or her couple which incurred during the continuance of the marriage relationship with his or her property acquired in marriage, it shall be considered as obligation and debts in the claim of division of marital property. Second, there are various kinds of substantive point of views, such as the theory of binding debts by property, the theory of binding debts by debts, the theory of the invariable legal nature, about whether or not deducting the debts or counting into the remainder of the property acquired in marriage. However, we should insist the formal standpoint about applying Article 1030-2 of the Civil Code correctly, and then exploring the existence of legal loopholes to grasp the necessity of analogy apply. And lastly, although paragraph 1 of article 1030-2 provides that if the husband or the wife discharged his or her debts incurred before marriage with his or her property acquired in marriage, it shall be counted into the remainder of the property acquired in marriage upon the termination of the relationship over the statutory regime, this paragraph cannot directly handle a case between different subject of rights. Nevertheless, article 1030-2 is a rule of regulating transformation of the legal nature. For correctly calculating the amount of division of marital property from paragraph 1 of article 1030-1, there is a necessity for article 1030-2 to be applied by analogy in the case about that the spouse used his or her property which acquired in marriage to discharge the debts of his or her spouse which incurred before marriage.