域外民法典中的夫妻債務制度比較研究－－兼議對我國相關立法的啟示

A Comparative Study on Regulations for the Debts on Husband and Wife in Civil Codes Overseas: Enlightenments to Improve Related Legislation of China

在域外的多部民法典中，確立夫妻債務規則的立法模式可劃分四類，其中在夫妻財產制中規定對外財產責任最為常見。實行不同種類夫妻財產制，配偶之間負擔對外財產責任有別。夫妻共同債務範圍可區分為大、中、小、超小四種法例。配偶承擔連帶責任的債務通常限於共同生活的必要、共同財產所生債務、夫妻合意之債，且夫妻對半負擔共同債務之清償責任；個人財產僅在特定情形下對共同債務承擔補充責任。夫妻一方個人債務由本人負責清償。夫妻共同財產或者配偶一方個人財產清償了另一方配偶個人債務的，獲益 配偶方應予以補償。基於保障對外財產責任履行和配偶另一方利益等考慮，立法禁止或限制配偶一方擅自處分、讓與其財產或財產利益。我國制定民法典婚姻家庭編確定夫妻對外財產責任時，既要充分考慮夫妻均是獨立個體，有各自的個人利益，又要考慮夫妻是婚姻共同體的成員，彼此具有共同利益；堅持民事主體地位平等，既合理分配夫妻對財產責任負擔，又要公平保護第三人權益。

Based on statistics and analysis of 9 Civil Codes overseas, there are four legislative models to establish the rales 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.