| 摘要: |
| 《民法典》第1064条关于夫妻债务的条款源于《最高人民法院关于审理涉及夫妻债务纠纷案件适用法律有关问题的解释》，该条款原来只针对夫妻对外关系，上升为法律条文后同时适用于夫妻对内和对外关系，即“内外同一”模式。由于债权人不易了解夫妻内部情况，这种做法较易损害债权人利益，对此可以通过适当放宽债权人举证责任和强化法院职权探知予以应对。该条文从司法解释上升为法律条文时与第1089条的衔接不够顺畅，遗漏了夫妻中举债一方的举证责任，应予补充。在内容上，该条第1款和第2款都出现“共同意思表示”，鉴于该条款的法理基础是《最高人民法院关于适用〈中华人民共和国婚姻法〉若干问题的解释（一）》第17条，建议将第1款的“共同意思表示”解释为签订合同的民事法律行为，将第2款的“共同意思表示”解释为表见代理。此外，条文中的夫妻“共同生产经营”的含义具有不确定性，建议对其进行目的性扩张解释。 |
| 关键词: 夫妻债务 共债共签 举证责任 共同意思表示 共同生产经营 |
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| The Insufficiency and Solutions of the Marital Debt Clause in the Civil Code |
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| Abstract: |
| The provisions of Article 1064 of the Civil Code concerning the debts of husband and wife originated from the Judicial Interpretation of Marital Debts in 2018. This clause was originally only applied to the external relationship between husband and wife. After being promulgated as a legal provision, it is applicable to both internal and external relations between husband and wife, namely “internal and external consistent” mode. Since it is difficult for creditors to know the internal situation of the husband and wife, this practice is more likely to damage the interests of the creditors. This can be dealt with by appropriately relaxing the creditor's burden of proof and ascertaining the court's power. When this provision was promulgated from a judicial interpretation to a legal provision, the convergence with Article 1089 was not smooth enough, and it omitted the burden of proof of the spouse who raised the debt and should be supplemented. In terms of content, the “common declaration of will” appears in both the first paragraph and the second paragraph of this article. Since the legal basis of this article is Article 17 of the “Marriage Law Judicial Interpretation I”, it is suggested that the “common declaration of will” in the first paragraph be interpreted as “the civil legal act of signing the contract”, and the “common declaration of will” in the second paragraph should be interpreted as an “agency estoppel”. In addition, the meaning of “joint production and operation” of husband and wife in the article is uncertain, and it is suggested that it should carry out a purposeful amplified explanation. |
| Key words: Debts of Husband and Wife, Joint Debts and Joint Signing, Burden of Proof, Common Expression of Will, Joint Production and Operation |
