夫妻在境外經(jīng)營(yíng)公司時(shí)，在公司經(jīng)營(yíng)過(guò)程中變更股權(quán)、轉(zhuǎn)讓或轉(zhuǎn)讓股權(quán)。但因出資或其他問(wèn)題，其出資不實(shí)、不到位。債權(quán)人要求配偶承擔(dān)連帶責(zé)任是否合理？股權(quán)轉(zhuǎn)讓形成的債務(wù)是夫妻共同債務(wù)嗎？

    When a couple operates a company overseas, they change, transfer or transfer their equity in the course of the company's operation. However, due to the investment or other problems, the investment is not real or in place. Is it reasonable for creditors to ask their spouses to bear joint and several liability? Is the debt formed by equity transfer the joint debt of husband and wife?

    咨詢問(wèn)題：股權(quán)轉(zhuǎn)讓形成的債務(wù)是夫妻共同債務(wù)嗎？

    Consultation question: is the debt formed by equity transfer the joint debt of husband and wife?

    律師解答：廣州專(zhuān)業(yè)收賬公司律師解答

    Lawyer's answer

    婚姻關(guān)系存續(xù)期間的債務(wù)原則上為夫妻共同債務(wù)。但股權(quán)出資所承擔(dān)的債務(wù)超過(guò)家庭日常生活的，不屬于夫妻共同債務(wù)。債權(quán)人主張屬于夫妻共同債務(wù)的，有舉證責(zé)任證明該債務(wù)用于夫妻共同生活、共同生產(chǎn)經(jīng)營(yíng)，或者基于夫妻共同意志的表達(dá)。

    In principle, the debt during the marriage is the joint debt of husband and wife. However, if the debt of equity contribution exceeds the daily life of the family, it does not belong to the joint debt of husband and wife. If the creditor claims that the debt belongs to the joint debt of husband and wife, it shall have the burden of proof to prove that the debt is used for the joint life, production and operation of husband and wife, or based on the expression of the joint will of husband and wife.

    在實(shí)踐中，判斷其是否屬于夫妻共同債務(wù)的關(guān)鍵是用于家庭生活還是夫妻共同經(jīng)營(yíng)，需要根據(jù)具體案例和證據(jù)收集情況來(lái)判斷。

    In practice, the key to judge whether it belongs to the joint debt of husband and wife is to use it for family life or joint operation of husband and wife, which needs to be judged according to specific cases and evidence collection.

    夫妻關(guān)系存續(xù)期間，一方以自己名義轉(zhuǎn)讓股權(quán)，另一方不知道該股權(quán)轉(zhuǎn)讓并從中受益，轉(zhuǎn)讓的股權(quán)不用于夫妻共同生活的，股權(quán)轉(zhuǎn)讓產(chǎn)生的債務(wù)，不作為夫妻共同債務(wù)。

    During the duration of the relationship between husband and wife, if one party transfers its equity in its own name, and the other party does not know about the equity transfer and benefits from it, and the equity transferred is not used for the husband and wife to live together, the debt arising from the equity transfer shall not be regarded as the joint debt of the husband and wife.

    法律依據(jù)：

    Legal basis:

    《民法典》第一千零六十四條夫妻雙方共同簽名或者夫妻一方事后追認(rèn)等共同意思表示所負(fù)的債務(wù)，以及夫妻一方在婚姻關(guān)系存續(xù)期間以個(gè)人名義為家庭日常生活需要所負(fù)的債務(wù)，屬于夫妻共同債務(wù)。

    Article 1064 of the civil code of the people's Republic of China, the debts incurred by both husband and wife by their joint signature or the subsequent ratification of one husband and wife, as well as the debts incurred by one husband and wife in their personal name for the daily needs of the family during the duration of the marriage relationship, belong to the joint debts of husband and wife.

    夫妻一方在婚姻關(guān)系存續(xù)期間以個(gè)人名義超出家庭日常生活需要所負(fù)的債務(wù)，不屬于夫妻共同債務(wù)；但是，債權(quán)人能夠證明該債務(wù)用于夫妻共同生活、共同生產(chǎn)經(jīng)營(yíng)或者基于夫妻雙方共同意思表示的除外。

    Debts incurred by one of the husband and wife in his personal name in excess of the needs of the family's daily life during the duration of the marriage relationship do not belong to the joint debts of the husband and wife; However, unless the creditor can prove that the debt is used for the couple's common life, production and operation or based on the expression of the couple's common will.

    xxxx律師分析：

    Lawyer analysis:

    在現(xiàn)實(shí)生活中，債權(quán)人可以要求債務(wù)人夫妻共同簽字確認(rèn)債務(wù)人夫妻是否同意舉債，但一方當(dāng)事人沒(méi)有辦法為夫妻共同生活或生產(chǎn)舉債。債權(quán)人舉證困難，導(dǎo)致許多共同債務(wù)無(wú)法認(rèn)定。

    In real life, the creditor can ask the debtor's husband and wife to sign together to confirm whether the debtor's husband and wife agree to raise debt, but one party has no way to raise debt for the couple's life or production. It is difficult for creditors to provide evidence, which leads to many common debts can not be identified.

    用于違法行為的債務(wù)不是夫妻共同債務(wù)

    The debt used for the illegal act is not the joint debt of husband and wife

    一方因賭博、吸毒所借債務(wù)，不用于夫妻共同生活和家庭生活，屬于一方不合理的個(gè)人支出，不屬于夫妻共同債務(wù)的范圍。因此，應(yīng)由債務(wù)人本人承擔(dān)，另一方配偶不承擔(dān)還款責(zé)任。

    The debt borrowed by one party due to gambling and drug abuse is not used for the couple's common life and family life, which belongs to one party's unreasonable personal expenditure and does not belong to the scope of the couple's common debt. Therefore, it should be borne by the debtor himself, and the other spouse should not bear the responsibility of repayment.