性别平等、人格独立与夫妻共同债务规则的解释——评法释[2018]2号

Gender Equality, Personality Independence and Interpretation of the Common Debt Rule of Husband and Wife——Comment on the Supreme People's Court Judicial Interpretation No.2[2018]

缔结婚姻关系后,夫妻彼此仍然享有平等、独立的人格。基于独立的人格,婚姻关系持续期间所产生的债务,非基于夫妻的举债合意,原则上应为个人债务。对婚姻法第四十一条"夫妻共同生活"的解释,应限制在文本的通常含义范围内,不得任意扩张。法释[2018]2号,纠正了《婚姻法司法解释(二)》第二十四条所使用的债务推定标准,系对婚姻法第四十一条的妥当解释。以"夫妻共同生活"作为共同债务的评价标准,其法理依据为夫妻日常家事代理权。以一方名义所负生产经营性债务,超越了日常家事的范围,原则上为个人债务。如要认定其为共同债务,应基于合意举债,债权人有义务证明该债务系双方的交往习惯,且用于夫妻共同生产经营。主张非举债方仅以共同财产为限承担清偿责任,其目的是为了弥补"婚内标准"所带来的误伤问题。在坚持"夫妻共同生活"标准的情况下,以连带责任作为清偿规则,具有正当性与合理性,并未损害婚姻当事人的独立人格。

After the marital relationship is established, the parties to the marriage still have equal and independent personality. Based on the independent personality, the debt incurred during the continuation of the marital relationship, which is not based on the meaning of joint debt, should be personal debt. The interpretation of Article 41 of the Marriage Law which established the standard for couple living together, should be limited to the usual meaning of the text and must not be arbitrarily expanded. The interpretation No. 2 [2018]is a proper interpretation of Article41 of the Marriage Act. It corrected the presumption of debt used in Article 24 of the Judicial Interpretation II of Marriage Law. Taking couple living together as the evaluation standard of the common debt, its legal basis is based on the husband and wife＇s daily family agency rights. The debts incurred by one party in operating terms exceed the scope of daily family affairs and, in principle, are personal debts. If debts are to be regarded as common debts, they should be based on the meaning of husband and wife＇s shared debt, and the creditor is obliged to prove that the debt is a habit of both parties and that they are used for joint production and business operations. There are views that non-debtors should only assume responsibility for repayment under the common property. The purpose is to make up for the problem of accidental injury brought about by marriage standards. In the context of adhering to the standard of couple living together, joint and several liability as the repayment rule is justified and reasonable, and does not harm the independent personality of the marital parties.