Study On The Off-Set Claimed In The Civil Procedure

Since the off-set concerns about the judgment of whether there exists another creditor's right, the off-set claimed in the civil procedure makes us have to consider the readjustment of the substantive and procedural law. First of all, referring to the nature of the off-set claimed in the civil procedure, the author argues that the preparatory off-set defense is produced by the procedure(the main reason is the Res Judicata), but this requirement must affect the means which the off-set of the substantive law uses. If the regulation of the off-set in the civil law doesn't readjusts, the preparatory off-set claimed in the civil procedure would be a contradiction. So, the purpose of the off-set regulated in the civil procedure law must reflect in the civil law. The author agrees with the theory of the new concurrence. Concerning the relationship between the off-set in the civil procedure and the reiterated pleading, the author divides the situation into three aspects: post-off-set, the preceded and the paralleled. The writer argued that in the first and the last but not in the second, we should allow off-set. On the question of the relationship between the off-set in the civil procedure and the time scope of the Res Judicata, the author considers that we should allow the defendant to exert the right to off-set after the procedure of the evidence investigation, but he has to bear the burden of persuasion of why he didn't exert it preliminarily. If he can't satisfy the burden, he will be punished by the judge from the point of the procedure but not substantive law.