Comparative Research On Set-off In Civil-law System

Almost all legal systems recognize the institution of set-off.The most important effect of set-off consists in a discharge of the obligations of the debtor and the creditor towards each other.There are some regulations related to set-off in Contract Law,Law on Enterprise Bankruptcy,Judicial interpretations and departmental documents.Though the basical frame has taken shape,the institution of set-off in China,generally speaking,isn't perfect.There are some issues needed to be dealt with.Researching on and drawing lessons from set-off in civil-law system countries or regions,like France,Egypt,Quebec,Argentina,Germany,Italy and the Netherlands,are beneficial to the perfection of the institution of set-off in our country.Descending from Roman law,the institution of set-off is widely followed by civil-law system.The development and perfection of set-off is ascribable to the exploration and confirmation of its values,such as convenience,guaranty and assurance of justice.With regard to legal set-off, there exist two legislation models: automatic set-off(German law is the prime exponent) and declarative set-off(French law is the prime exponent).The most essential difference between them is whether set-off doesn't effect until one party makes declaration or not.Compared with automatic set-off,declarative set-off is more rational.According to different causes bringing about set-off,we can divide set-off into two types:legal set-off and contractual set-off.Insolvency set-off is the peculiarity of legal set-off.Different types of set-off have different requirements.In laws of civil-law system,there generally are six situations where set-off is excluded:the principal claim is not capable of attachment;the claim has been attached,the claim arising from a wilful delict,the claim for restitution of an object,of which the owner was unlawfully deprived,and so on.To perfect the institution of set-off in China,we should make great efforts to single set-off out as an independent section in future civil law,clear the effect of legal set-off,stipulate the exceptional situations of legal set-off,list and generalize the negative requirements for legal set-off,broaden the scope of contractual set-off and detail the regulations related to insolvency set-off.