经营型夫妻共同债务的认定研究

Research on the Determination of Joint Debt of Management Husband and Wife

《民法典》第1064条规定“共同经营型”夫妻共同债务不同于“共同生活型”夫妻共同债务的认定和清偿规则,其规则的不明晰亟待厘清。经营型夫妻共同债务按照经营形式可分为有组织型与无组织型,按照参与实质可划分为双方实际经营型与一方单独管理型。基于提升认定经营型夫妻共同债务的效率,解决当下司法实践中认定不一的问题,经营型夫妻共同债务应当遵守体现夫妻共同意志,债务用于家庭生活和生产经营。符合该规则的夫妻双方应当承担连带清偿责任。

Article 1064 of the Civil Code stipulates that the joint debts of “jointly operated” couples are different from the rules for determining and paying off the joint debts of “jointly lived” couples, and the ambiguity of the rules needs to be clarified. The joint debt of management husband and wife can be divided into organized and unorganized according to the management form, and can be divided into two types according to the essence of participation: the actual management of both parties and the separate management of one party. Based on improving the efficiency of identifying the joint debts of management husband and wife and solving the problems of different identification in current judicial practice, the joint debts of management husband and wife should abide by the common will of husband and wife, and the debts should be used for family life and production and operation. Both husband and wife who meet this rule shall bear joint and several liability for repayment.