共同财产制下夫妻个人债务执行程序的规则建构

共同财产制是我国关于婚姻财产的法定财产制度,建构夫妻个人债务执行规则不能忽视共同财产制。当前民法典适用时期,以物权外观原则区分债务人财产为基础的夫妻个人债务执行规则陷入困境,应以共同财产制为基础建构新的执行规则。依据共同财产制,被执行人及其配偶夫妻关系存续期间获得的财产原则为共同财产,夫妻双方在共同财产内部具有同等的份额。相对于另行诉讼、追加被执行人配偶以及先析产再执行,直接执行一半夫妻共同财产是夫妻个人债务执行的可行方案。为顺利执行一半夫妻共同财产,可创设夫妻个人债务推定规则,共同财产查控规则,共同财产评估、控制、处置规则以及债务人配偶权利保护规则,实现法院执行与当事人权利保护之间的平衡。

The Construction of the Rules of Execution Procedure of Couple's Personal Debts under the Common Property System

The common property system is the legal property system of marital property in China.The common property system cannot be ignored in the construction of personal debt execution rules.In the current period of application of the Civil Code,the execution rules of personal debts of husband and wife based on the principle of property right publicity to distinguish the debtor's property are in trouble,and new execution rules should be constructed based on the common property system.According to the common property system,property acquired by the person subjected to execution and his or her spouse during their marriage is regarded as common property,therefore,both husband and wife have the same share in the common property.Compared to separate litigation,additional spouse of the person to be executed and property analysis before execution,the direct execution of half of the couple's common property is a feasible scheme for the execution of the couple's personal debt.So as to carry out half of the couple's joint property in a legal manner,we should construct the rules of presumption of personal debt,the rules of investigation and control of joint property,the rules of evaluation,control and disposal of joint property,and the rules of protection of the debtor's spouse's rights,so as to achieve the balance between court enforcement and the protection of the rights of the parties.