夫妻单方负债债务的定性与清偿——兼评《〈婚姻法〉司法解释(二)的补充规定》

Recognition and Liquidation of the Debt Occurred by One Personof Spouses——Comment on the Supplementary Provisions on the Judicial Interpretation of the Law of Marriage(Ⅱ)

最高院发布了《〈婚姻法〉司法解释(二)的补充规定》,新增"夫妻一方与第三人串通,虚构债务,第三人主张权利的,人民法院不予支持。夫妻一方在从事赌博、吸毒等违法犯罪活动中所负债务,第三人主张权利的,人民法院不予支持"两款作为旧24条的补充,最高院积极回应审判需求的精神值得肯定,但新24条仍难以克服旧24条所面临的困境。夫妻共同债务的认定应以"是否用于夫妻共同生活"为唯一标准,一方以个人名义所负债务(简称单方负债)如果用于夫妻共同生活,当然应认定为夫妻共同债务;反之,其虽不符合夫妻共同债务的本质,出于保护债权人的需要,其清偿应按照夫妻共同债务的规则予以清偿,在内部关系上,非举债配偶方享有追偿权。

The Supreme People＇s Court issued the Supplementary Provisions on the Judicial Interpretation of the Lawof Marriage （11）, added ＂The husband or wife and the third party collude debt, and the third party advocates the right, and the people＇s court does not support it.The debt occurred by one person of spouses for unlawful activities, and the third party advocates the right, and the people＇s court does not support it.＂ as the supplement of original article 24. the Supreme Court actively responds to the needs of the trial and it is worthy of recognition.But the new article 24 is still fail to overcome the dilemma faced by the original article 24. Whether it is used for couples＇ living together, of course, should be identified as the sole criterion to affirm joint debt between husband and wife.If unilateral liability is used for couples＇ living together, it should be admitted as joint debt.The other hand, although it does not meet the nature of the joint debt between husband and wife, for the protection of the needs of creditors, the settlement rules should be in accordance with the rules of the joint debt; in the internal relations, non-debt spouse is entitled to the 6ght of recourse.