夫妻共同债务认定标准的中西法传统比较

夫妻共同债务认定的司法乱象丛生,在于财产契约属性的民商事规则取代共同生活的婚姻纠纷考量规则的价值取向偏差,突破了合同相对性而过度保护债权,亟待以夫妻共同债务认定标准的中西法传统比较为镜鉴,正本溯源。夫妻共同债务中所借债务为了婚姻关系符合伦理和法理正当目的的属性不同,由此形成特色迥异的认定原则。我国同居共财的吸收原则,迥异于罗马法基于意识自治的分离原则,相互交汇于共同生活的统摄原则。吸收原则很难内生性进化发展,但有利于婚姻关系共同体的稳定,而分离原则易于矫枉过正,治理成本极大,却尊重个人独立。故惟有以致中和的夫妻债务认定理念来构建防范债权风险的制度,并落实在救济弱者的司法裁量中,方能解决夫妻共同债务认定标准的根源问题。

Comparison between Chinese and Western Legal Traditions on Standard of Community Debt

There is judicial chaos in the determination of community debt, which is due to the value orientation deviation of the property contract attribute of civil and commercial rules to replace the marriage dispute consideration rules of common life, breaking through the relativity of contract and over protecting creditor's rights. It is urgent to take the traditional comparison of Chinese and western law as a mirror to trace the origin.The debt borrowed by husband and wife in the community debt is different for the sake of the legitimate purpose of marriage in accordance with ethics and jurisprudence, thus forming the identification principles with different characteristics. The absorption principle under the cohabitation and common estate in ancient China is quite different from the separation principle based on consciousness autonomy in Roman law, but converging the principle of common life. The principle of absorption which can hardly have chances to develop endogenously is conducive to marriage stability; while the principle of separation which is easy to swing too far with the tremendous governance cost respects individual independence. Therefore, fundamental issues from identification of community debt can be solved by the philosophy of achieving properness and harmony, the establishment of a system to prevent the risk of creditor's rights, and the implementation of the judicial discretion to the interests of the vulnerable group.