Discussion On The Set-off In Civil Procedure

From the broad sense, there are two kind of set-off in procedure. One is that the defendant expresses the meaning of set-off out of the procedure and advocates it again in the form of counterplea in procedure , that means the defendant has expressed the meaning of set-off before the plaintiff sued or out of the lawsuit. After that, the defendant advocates the fact of expressing the meaning of set-off in the lawsuit. This kind of situation can be called "the counterplea of set-off outside the lawsuit ".The other is the expressing the meaning of set-off in the lawsuit. That is the defendant starts to put forward the opinion of set-off while arguing in words, its method can be advocating set-off under acknowledging the plaintiff's rights. It can also be disputing whether the plaintiff's rights are existing or not on one hand, the way on the other hand declaring by preparing advocating set-off for compensating.This paper mainly starts to discuss the obscurity situation in judicial practice between the set-off in procedure and the countercharge. There is difference between them. And it also analyzes the concept, characteristic and existing necessity of the set-off in procedure. The set-off in procedure is also different from the set-off in substantive law. From the history of the set-off system, the rudiment of the set-off in procedure in modern law rises from Rome law, and after that it produces the rudiment of the set-off and countercharge, and separates with countercharge. It forms the set-off and countercharge in modern law. It is not perfect provided in our country law to the set-off in procedure and the whole set-off system.This paper further discusses the theory value and the definition of the set-off in procedure and also including the influence that produces. It analyzes some questions in the procedure that influences, such as whether it belongs to the lawsuit, theory on compulsory adjudicate and whether it can be applicated in the second trial and so on. At last, it gives analysis to the application situation in German, Japan and England. It is a system remained to further explore according to the situation in various countries regulation and application in our country. As how to construct the set-off system of our country, it needs academia and practice department to further study.This paper includes four chapters. The first chapter summary of the set-off in procedure, introducing legislative authority and concept of the set-off, and the question and puzzle meted in the judicial practice. The second chapter the history origin and development of the set-off in procedure. It introduces the Rome law origin, English and American law origin and Chinese law origin. The third chapter the theory value of the set-off in procedure. It introduces the procedural benefit and just value of the set-off in procedure, reconstruction of value and micro influence of properties. The procedural field that the set-off in procedure involves: comparing with the countercharge, the question whether it belongs to the lawsuit, theory on compulsory adjudicate and whether it can be applicated in the second trial and so on. The last chapter the comparing study for the set-off in procedure, it mainly introduces the set-off in procedure in the modern German, Japan and England and it also looks forward to the development of the future.