夫妻债务的清偿顺序
叶名怡夫妻债务的清偿顺序
Settlement Order of Joint and (or) Personal Debt of Spouses
期刊名称：《法学研究》
期刊年份：
作者：叶名怡
单位：
中文关键词：夫妻共同债务;连带责任;个人债务;责任财产;执行顺位
英文关键词：joint debt of spouses; joint and several liability; personal debt; property subject to liability; sequence of enforcement
中文摘要：
夫妻共同债务应被定性为一种有清偿顺序的连带债务。比较法经验表明，夫妻共同债务的有限责任通常是作为“共债推定”的配套制度而存在，而我国现行法确立的是“个债推定”。鉴于我国夫妻财产归属欠缺明晰的公示方法，破解问题的关键不在于责任财产的范围，而在于夫妻债务的认定范围。只要坚持将“夫妻共同债务金额”与“确定的受益金额”等同，从严认定共同受益型夫妻共同债务，就既能与第三人受益返还的财产法原理相一致，又能有效消除连带债务的严苛性。夫妻共同债务应首先以夫妻共同财产偿还，不足时才能以双方个人财产偿还；夫妻一方个人债务应首先以其个人财产偿还，不足时才能以夫妻共同财产中的一半份额偿还；当夫妻一方个人债务与夫妻共同债务并存时，夫妻共同财产应首先用来偿还夫妻共同债务，即便债权人为同一人也应如此。民事强制执行法草案仅规定了夫妻个人债务的责任财产执行顺序，尚需补足其余两项规则。
英文摘要：
The joint debt of spouses should be characterized as a joint and several debt with an order of settlement. Comparative law experience shows that the limited liability of spouses for joint debt usually exists as a supporting system of "presumption of joint debt", while the current law in China establishes the "presumption of individual debt". In view of the lack of a clear method of public disclosure of the ownership of matrimonial property in China, the key to solving the problem lies not in the scope of property subject to liability, but in the scope of debt determination. As long as the "amount of joint debt of spouses" is equated with "amount of benefit" and the joint debt of the joint beneficiary spouses is identified in a strict way, this system can not only be consistent with the principle of property law of third-party beneficial return, but also effectively eliminate the strictness of joint and several debts. A joint debt of the spouses should firstly be repaid with their joint property, and only when the joint property is insufficient can it be repaid with the personal property of both parties. A personal debt of one spouse shall firstly be repaid with his or her own personal property, and only if his or her own personal property is insufficient can it be repaid with half of the joint property of the spouses. When the personal debt of one spouse and the joint debt of the spouses co-exist, the joint property of the spouses should firstly be used to repay the joint debt, even if the creditor is the same person. The Draft Civil Enforcement Law only provides for the rule on the order of enforcement of the property subject to liability for the repayment of the spouse's personal debt, and the remaining two rules should be added to the draft law.
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