China: 北野武先生滚烫人生引起的法律启示覧论分居期间收入的归属及债务承担

Last Updated: 13 August 2019
Article by Yu Wenhong

您是否听说过《菊次郎的夏天》?那部关于童年、关于成长的电影。

您是否了解这部电影的导演?一位曾被日本大众评为"最放心把国家交给他"的人。

同样,他人生履历的精彩程度亦不亚于任何一部电影。

这就是北野武覧一位大学肄业,却成为东京艺术大学教授;以面瘫示众,却屡获影帝提名;曾当出租车司机,如今是世界知名大导演。70岁时推出自己的时装品牌KITANOBLUE「北野蓝」;cosplay小萝莉,搞怪整蛊嘉宾,还曾调侃要转行去当男优。

就是这样一位亦正亦邪,放飞天性的72岁传奇大导演,在前些天传出了离婚的消息,和配偶在长达30年分居后、把自己名下全部财产(200亿日元,约12.75亿元人民币)留给妻子,以换得一纸离婚协议。

分居长达30年,付出的代价何止是财产?

幸福的婚姻琴瑟调和,不幸的婚姻"精彩绝伦"。我们承办的案件中,虽对彼此百无聊赖但迫于"家庭圆满",长期分居的"塑料夫妻"非常普遍。很多人误认为分居期间收入归各自所有,债务各自承担。这种错误认识,导致长期分居的夫妻在之后敢于结束婚姻时,又迫于解决财产和债务问题而使婚姻关系久拖不决。彼此相忘于江湖还好,一旦反目成仇,厮杀于法庭之上,相互拖垮何止是人生?

什么是夫妻分居制度?

夫妻分居制度是指解除夫妻同居义务但不解除婚姻关系。它起源于中世纪欧洲教会法的夫妻分居制度,基督教的教会法将此项制度作为禁止离婚的补充手段和救济方式。随着经济日益发展、法律制度不断完善、以及男女平等意识的逐渐觉醒,英美法系和大陆法系的国家在婚姻家庭立法中大都规定了夫妻分居制度,并对分居的财产制度进行明确规定。如法国民法典规定:"分居效力及于夫妻财产,因分居当然成为分别财产,夫丧失对妻的财产管理权。"

而我国《婚姻法》并没有分居制度的直接规定,仅在"离婚"一章中指出:"因感情不和分居满二年的,因调解无效,应准予离婚。"此将分居确定为判决离婚的法定原因之一。在司法实务中,共处一室分房居住就不能认定为法律意义上的分居,而通常应以租房合同或夫妻分居书面协议,或双方自认等为准。

什么是夫妻共同财产?

我国的夫妻财产制度是婚后所得共同制,主要为三点:一是基于婚姻法规定;二是婚姻关系存续期间;三是夫妻的书面约定。因此,在夫妻关系存续期间,只要夫妻对财产没有书面协议约定的,就属于夫妻共同财产。

分居期间的收入属于夫妻共同财产吗?

在夫妻分居期间,婚姻关系是合法存在的,婚姻关系只能通过协议离婚或者诉讼离婚消灭。因此,事实上的分居并不会影响婚姻关系。故分居且未对彼此财产进行约定的,则分居期间双方所得的财产仍为夫妻共同财产。

离婚时如何分割?

各自分别管理、使用的财产归各自所有。双方所分财产相差悬殊的,差额部分,由多得财产的一方应当给予另一方必要的补偿。

分居期间一方对外负债是否为夫妻共同债务呢?

第一,基于法定义务之债

因法定义务所产生的债务为共同之债,比如为了抚养孩子、照顾老人所负的债务。

夫妻之间相互扶养所欠的债务。即使夫妻双方分居,如果一方生活确有困难,另一方仍有义务帮助困难一方。而困难一方因生活而举债,则此债务应为夫妻共同债务。

第二,为家庭日常生活所负之债

以个人名义为家庭日常生活需要所负的债务,属于夫妻共同债务。

第三,共债共签或事后追认之债

即使分居,夫妻双方共同签字或者夫妻一方事后追认等共同意思表示所负的债务,亦为夫妻共同债务。

诚然,分居期间所有的债务都是共同债务吗?

错!通常"塑料夫妻"长期分居的,相互生活并无交集,一方往往以个人名义负债。夫妻一方以个人名义如超出家庭日常生活需要负有债务的,一般不认定为共同债务。

北野武先生说"无聊的人生,我死也不要",他燃爆的人生所得又何止于财产呢?我们姑且不讨论他在道德层面的忠实义务和对于婚姻的态度,单就对财产的放弃来讲,如果这一"壮举"不是您的选择,那么还是好好读读此文吧。

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