论生产经营型夫妻共债的认定

On the Determination of Joint Debt Based on Joint Production and Operation of Spouses

夫妻共债的界定对其认定标准有重大影响。我国实证法坚持“共债即连带”,这决定了在解释论上应对夫妻共债从严认定。生产经营型夫妻共债的正当性基础虽包括共同受益论,但绝不可将其泛化成共债判定标准以至于架空具体共债类型。“共同”的本质是大体同等的影响力,包括双方参与型和一方授权型,但在后者,实际经营方仍受重大事务管理限制的拘束。对于两户型共同生产经营,《民法典》第56条和第1064条应结合适用。关于“用于”的判定标准,应抛弃受益说而改采用途说,其核心要义是客观用于而非主观受益,确定用于而非可能受益,初始用于而非结果受益,直接用于而非间接受益。《民法典》将债务利益用于夫妻共同生产经营的证明责任分配给债权人具有合理性,但非举债方亦负相应的具体化证明义务。

The definition of joint matrimonial debt has a significant impact on the criteria for its determination.Our empirical law insists that"joint debts are joint and several liabilities",which dictates that the joint debts of spouses should be strictly identified in interpretation.Although the justification for joint matrimonial debt of the production and operation type includes the doctrine of joint benefit,it must not be generalized that it becomes a criterion for the determination of joint debts,leading to the hollowing out of specific types of joint debt.The essence of"joint"is roughly equal influence,which includes both participatory and one-party authorized,but in the latter case the actual operator is still bound by restrictions on the management of major matters.In the case of individual businesses and lease-holding farm households'type of joint production and operation,articles 56 and 1064 of the Civil Code should be applied together.The criteria for determining""use"should be replaced by the theory of use rather than the theory of benefit;the core elements are objective use rather than subjective benefit,definite use rather than possible benefit,initial use rather than benefit from the results,and direct use rather than an indirect benefit.The Civil Code rightly allocates the burden of proof to the creditor that the benefit of the debt was used for the joint production and operation of the spouses.However,the non-borrowing party also has a corresponding obligation of concretization.