我国夫妻分居期间所生债务归属认定规则论

On the Legislative Orientation of Marital Debts in Separation

夫妻在分居期间以个人名义负债,缺乏共同举债的意思联络,且他方并未共同分享所举之债的利益,应认定为夫妻个人债务。但基于分居并未解消夫妻扶养义务及抚养教育子女义务的法律属性,分居夫妻一方就履行法定扶养义务所生之债,应认定为夫妻共同债务。夫妻就分居期间产生的债务有约定的,从其约定,但以不违反法律强制性规定及社会公序良俗为限。

The debts by name of individual in separation period and short of common borrowing agreement,shall be recognized as personal debts according to the principle of the unity of rights and obligations,because the spouse cannot share the benefit of debt. However,separation cannot relieve the legal obligations such as spousal maintenance obligations and the compulsory of raising child. The debts by name of individual in separation period can be recognized as common debts when the debts emerge because of fulfilling the legal obligations. Meanwhile,the spouse make agreement on debt ownership,and the agreement shall be effective,excluding disobeying the mandatory rule and public order and good customs.