民间借贷案件夫妻共同债务的认定

发布时间：2018-02-26 01:28

本文关键词： 夫妻共同债务举证责任共同债务认定完善建议　出处：《山东大学》2017年硕士论文　论文类型：学位论文

【摘要】：夫妻作为经济主体的重要组成部分,在市场经济活动中发挥着日益重要的作用。夫妻共同债务的认定问题,关乎夫妻非举债方的利益,也关乎第三人的利益,更关系到整个市场往来的安全。夫妻共同债务的认定的关键在于平衡夫妻非举债方与第三人的利益。最高人民法院就夫妻共同债务问题发布了指导意见,但是该意见的规定过于笼统模糊,难以应对司法实践中层出不穷的新问题。各省高级人民法院出台的指导意见对夫妻共同债务的认定问题规定也有所不同,极易造成同案不同判的现象,并引发大量的信访案件。本文主要分为五个部分,第一部分由两个案例入手引出了本文的研究对象。这两个案例均是民间借贷案件,并且案情有相似之处。但是这两个案件的一、二审法院却作出了不同的判决结果,笔者对这两个案例进行了深入分析,之所以相同案件出现不同结果是因为不同法院的法律适用标准不同,就夫妻共同债务的标准及界定也存在不同,由此容易产生同案不同判的现象。第二部分是夫妻共同债务概念的界定,通过了解夫妻共同债务的概念、性质及特征,才能更好界定夫妻共同债务,这也是法学理论界与审判实务中的争议点所在。通过分析比较"合伙债务说"的观点更加符合夫妻共同债务的性质,我国的《婚姻法》的相关规定的立法本意也是采纳了"合伙债务说"的观点。第三部分是对相关法律规定的介绍与评价,对夫妻共同债务的法律规定、最高人民法院的批复以及各省的指导意见一一进行分析,通过分析比较的研究方法,指导司法实践中的法律适用,由此得出结论《婚姻法》与《婚姻法解释(二)》的法律规定看似矛盾,实则统一,在审判中应当具体问题具体分析,参照个案的不同情况,适用不同的法律规定。第四部分涉及审判实务的分析,首先根据审判实际,总结了民间借贷案件几种不同的情况,并针对不同情况适用的法律进行比较分析。民间借贷案件主要适用《婚姻法解释(二)》第二十四条的规定,该条规定是学术界对夫妻共同债务推定规则的由来,笔者通过分析该规定的合理性及缺陷,得出审判实践中合理划分举证责任的必要性的结论。第五部分是合理界定共同债务的对策研究,该部分从共同债务的界定、偿还规则、预防虚假诉讼、审判实务四个方面进行了分析,针对前文中出现的问题及争议点一一进行阐述,包括大额债务夫妻共同签字制度、家事代理制度、夫妻约定财产制的公示制度以及加强虚假诉讼的预防等等,最后笔者从审判实践的角度就审判实践中出现的问题,提出了自己的建议。希望通过几点简单的建议、从立法、司法、执法多个方面出发,减少审判实践中就该问题的争议。
[Abstract]:As an important part of the economic subject, husband and wife play an increasingly important role in the market economy activities. The problem of joint debt between husband and wife is related to the interests of the couple who are not borrowing money and the interests of the third party. It is also related to the security of the entire market. The key to the determination of the joint debt between husband and wife is to balance the interests of the non-borrower and the third party. The Supreme people's Court has issued a guiding opinion on the issue of joint debt between husband and wife. However, the provisions of this opinion are too general and vague to deal with the endless new problems in judicial practice. The guidelines issued by the higher people's courts in various provinces have different provisions on the determination of joint debts between husband and wife. This paper is mainly divided into five parts. The first part leads to the research object of this paper from two cases. These two cases are both private lending cases. And there are similarities in the case. However, in one of these two cases, the court of second instance made different decisions. The author made an in-depth analysis of the two cases. The reason why the same cases have different results is because different courts have different standards for the application of the law, and there are also differences in the criteria and definitions of the common debts of the husband and wife. The second part is the definition of the concept of joint debt between husband and wife. Through understanding the concept, nature and characteristics of the joint debt of husband and wife, we can better define the common debt of husband and wife. This is also the controversial point in the field of legal theory and judicial practice. Through the analysis and comparison of the view of "partnership debt", it is more in line with the nature of joint debt between husband and wife. The legislative intent of the relevant provisions of our country's Marriage Law is also to adopt the viewpoint of "partnership debt". The third part is the introduction and evaluation of the relevant laws and regulations, the legal provisions on the joint debt of husband and wife. The written reply of the Supreme people's Court and the guidance opinions of the various provinces are analyzed one by one, and through the analysis and comparison of research methods, the application of the law in judicial practice is guided. From this we can draw a conclusion that the legal provisions of the Marriage Law and the interpretation of the Marriage Law (2) appear to be contradictory, but in fact they are unified. In the course of the trial, the specific problems should be analyzed concretely, referring to the different circumstances of the case. Application of different legal provisions. 4th part involves the analysis of trial practice. First of all, according to the actual situation of the trial, this paper summarizes several different situations of private loan cases. The folk borrowing cases mainly apply to the provisions of the interpretation of Marriage Law (2) > 24th, which is the origin of the rules of presumption of common debt between husband and wife in academic circles. By analyzing the rationality and defects of this provision, the author draws the conclusion that it is necessary to reasonably divide the burden of proof in trial practice. Part 5th is a study on the countermeasures of reasonable definition of common debt, which is based on the definition of common debt, repayment rules, etc. In order to prevent false litigation, four aspects of trial practice are analyzed, including the joint signature system of large debt couples and the family agency system. Husband and wife agree on the publicity system of property system and strengthen the prevention of false litigation and so on. Finally, the author puts forward his own suggestions on the problems in trial practice from the perspective of trial practice. I hope to pass a few simple suggestions and legislate. Judicature, law enforcement many aspects proceed, reduce the dispute on this question in the trial practice.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.9

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