夫妻个人债务的清偿与执行规则——以司法实践中的“类案异执”为视角

Rules for the Settlement and Enforcement of Personal Debts of Husband and Wife from the Perspective of"Different Execution of Similar Cases"in Judicial Practice

夫妻共同财产可否成为个人债务的执行标的在学界和司法实务界存在分歧,而《民法典》第1066条和第303条对于在婚姻关系存续期间是否可以分割夫妻共同财产的规定亦有矛盾冲突之处。实在法的矛盾冲突、财产的外在公示与实际所有的不一致、债权人保护与案外人保护之间的价值衡量等原因导致夫妻个人债务的执行在司法实践中呈现“类案异执”乱象,应采取两步走路径,先执行被执行人个人名下财产,再另行提起析产诉讼对夫妻共同财产予以分割从而执行被执行人应有份额,以此保障配偶方的正当权益和统一规制司法实践中的执行乱象。

There are different opinions in academic and judicial circles about whether the joint property for husband and wife can be subject matter of enforcement of personal debt and there are some conflicts in the provisions of Article 1066 and Article 303 of civil code on whether the joint property for husband and wife can be divided during the marriage relationship.The conflict of the substantive law,the inconsistency between public presentation and confidence of property right and the actual ownership,the value measurement between the protection of the creditor and the protection of the third party and other reasons lead to the confusion of"different execution of similar cases"in the execution of the personal debt of the husband and wife in the judicial practice.In order to protect the legitimate rights and interests of the spouse and regulate the chaos of the execution in judicial practice,there is need to take a two-step path,first execute the property under the person subjected to execution,then the creditors initiate a partition suit to divide joint property for husband and wife.