共有之债的理论解析——《物权法》第102条之反思

The Theoretical Analysis of Obligation in Common——Rethinking of Article 102 in The Property Law of China

“共有之债”并不是一个得到普遍认同的概念。《物权法》第102条对共有之债的实现方式统一采用连带性的原则可以商榷。因共有财产产生的债务,按份或共同共有人以承担连带债务为原则;但给付共有财产的债务,对按份共有人应适用按份债务规则,对共同共有人则应适用协同债务规则;基于法律的特别规定,某些因共有财产产生的债务无须共有人共同负责。因共有财产产生的债权,对共有人原则上应适用协同债权规则;但按份共有人对可依数量进行分割的给付标的享有的债权适用按份债权规则,家事代理领域和没有委托执行人的合伙关系领域的共同共有债权则适用连带债权规则。共有人为返还共有物之请求,参照共有债权的规则;共有人为妨害排除之请求,原则上准用连带债权规则。

"Obligation in common" is not a concept of universal identity.The uniform provision in Article 102 in The Property Law of China is inappropriate,which applies the joint and several principle to the realization of obligation in common.In the case of debts arising from the common property,the principle of joint and several obligation shall be taken as the basis for several or joint co-owners.However,for the debts to deliver the common property,the several co-owner shall be subject to several obligation while the joint co-owner shall be subject to joint obligation.For special provisions of law,there is no need for all the co-owners to be commonly responsible for certain debts arising from the common property.In the case of claim in personam arising from the common property,the principle of joint obligation shall apply to co-owners.The principle of several obligation shall apply to the claim in personam entitled by the several co-owner in respect of the object of performance which may be divided by quantity.The principle of joint obligation applies to the claim in personam entitled by the joint co-owner in cases of family agency and partnership without entrusting executors.The co-owner's claim for the return of the common property should refer to the rule of claim in personam in common.The co-owner's claim for obstruction exclusion should be subject to joint obligation in principle.