The Conception Of Improving Our Set-off System

Set-off means that when both sides run into debts, they can exterminate the debt in the equal amount the debt. It has several characteristics such as simplicity, convenience, equality and the guarantee function. From the aspect of nature, as it works as long as one side approves it, the effort of the other party becomes unnecessary, thus it is a right of formation. Set-off as a way of eliminating debt, is an old and important system in the civil code which has a long history that can cast back to the ancient Rome. Later as the development of the glossators, Continental law countries such as Germany and France and some Anglo-American law system countries developed the set-off system which has more developed theories and legislative regulations and gradually formed three modes: Automatic set-off, such as France, Retrospective set-off, such as Germany and Full formalism set-off, such as Britain. It experienced the process of growing out of nothing and from the badly needed to the relatively plenty. Reviewing the set-off legislation in our country, it lacks deep and systematic research because of the overlook from the theoretical and practical aspects. The existing regulations now are only a continuity and reference of the legislative modes of other counties. Thus a series of weaknesses appears in the set-off system, there is no comprehensive and outlined regulation, besides it lacks the adaptability to the different set-off situations in practice and links between the department laws and so on. Based upon this, it is quite necessary to establish a developed set-off system so as to adapt the development of the society. Now the civil law is going to be enacted, we can make use of this opportunity to set regulations on set-off system in the general principles of laws on debts which including: the apply area of the set-off, general prepositions, effect of laws and the set-off under special circumstances, in the concrete department law, all that relates to the debts elimination part should be regulated according to the characteristics of the debts and the adaptability. In the procedural law especially in the civil procedure law, the set-off in the judgment and the set-off regulations in the performing process should be involved with reference to the laws in Britain and America. By the cooperation of every system, the set-off system thus becomes a related, coordinated and unified system.