On Offset Proceedings

With continuous development of our market economy,there are a lot of mutual transactions,so the value and the function of offset become more and more obvious and recognized by people.In the civil legislation of the German branch of Continental law systems,offset is an important system;our "Contract Law" also stipulates this system.Litigation offset as an important method of the right of setoff,is an important way of implementing the function and value of offset and protecting the legitimate rights and interests of the parties,and has irreplaceable value and significance.However,in our civil procedural law,the litigation offset is blank;and in the judicial practice,litigation offset is also restricted or even excluded.Therefore,there is the great fracture between pressing needs in practice and the supply system in our country that makes improving litigation offset system necessary.This paper adheres to the "dualism of substantive law and procedural law",and by the in-depth study of the German branch of Continental law systems,inspects the root of litigation offset problems, analysis the status quo and issues of our litigation offset and the inadequacy in legislation.I also put forward suggestions on how to improve litigation offset, hoping make benefits to improvement of our litigation offset.This paper with about 30000 characters,includes five parts.PartⅠ:The general inspection of the litigation offset.First,I make definition of the conception and function of the offset.Secondly,I fully inspect and analysis the conception and type and value of the litigation offset.1.Based on the "dualism of substantive law and procedural law",the "civil litigation" is a dynamic framework which is dually regulated by civil substantive law and civil procedure law,and links,tests and develops the civil substantive law and civil procedure law.Then,I define the litigation offset as:the litigation offset is a behavior that the party provides the court with his creditor's rights enjoyed of the other party to offset the other party's litigations request in civil litigation.2. Litigation offset can be divided into direct offset and preparatory offset.3.The value of litigation offset is to link substantive law and procedural law,give full play to the function of offset,protect litigation justice,and improve the efficiency of the litigation.Compared with counterclaims,litigation offset has independent function and value.Litigation setoff and counterclaim are irreplaceable legal systems.PartⅡ:The root of issues of litigation offset.Litigation offset involved with civil substantive law and civil proceeding law is a very complex controversial system in civil procedural theory and practice.In this part, according as "dualism of substantive law and procedural law",I bring civil substantive law into areas of study,explore and inspect the litigation offset in civil litigation.I find that the provision of offset in civil substantive law is the sticking point of issues of litigation offset.Right of offset is provided as a self-help right in civil substantive law,which is the root of issues of litigation offset.The inherent tensions and contradictions between the self-help nature of offset and the public-remedy nature of litigation offset get litigation offset into "schizophrenia" condition.In the German branch of Continental law systems, the self-help nature of offset prominently embody in the form and effectiveness rules:the theory of retrospective offset,which is with deficiencies and shortcomings that is difficult to overcome.Therefore,in order to fundamentally resolve the issues of litigation offset,we must remove the self-help nature of offset,abandon the theory of retrospective offset,and establish new form and effectiveness rules of offset behavior.PartⅢ:Basic problems of litigation offset.Based on the "dualism of substantive law and procedural law",in accordance with the new form and effectiveness rules of offset behavior,I probe into three basic questions of litigation offset:the nature of litigation offset,res judicata of litigation offset,the litiscontestation of litigation offset.The nature of litigation offset is the core issue of litigation offset,the different orientation of nature is the direct cause of problems and controversy about litigation offset.I bring forward "new theory of litigation action",and advocate that litigation offset is litigation action with dual nature of substantive law and procedural law;the important document of litigation offset must be double important document within substantive law and procedural law;litigation offset come into effect since the judgment has identified by courts.2.The exceptional stipulation of litigation offset having res Judicata triggered a lot of other issues.Therefore,clearing res Judicata of litigation offset is much helpful to solve many problems about litigation offset. Litigation stands offset.By substantial judgment,offset claim has res judicata, limited by the amount of offset.Litigation offset should be covered by the res judicata in principle,except that the obligee can prove that he didn't recognized their offset conditions had set up.3.Litigation offset bounded by res judicata exceptionally,so it should be also exceptionally bring litiscontestation.But Litigation both answer doesn't produce litiscontestation.PartⅣ:Our current situation,issues and inadequate in legislation of litigation offset.First,this part starts from a real case about litigation offset,in light of general attitude of Supreme Court towards litigation offset and the general performance of trial practice,reveals that litigation offset is limited and even excluded currently in China.And the wrong understanding,and the pursuit of cases number,the litigation cost,litigation efficiency,and the pressure of trial time limit,and the imperfect of laws are reasons for rejection and restrictions toward litigations offset by court.Our courts' rejection and restriction towards litigations offset is seriously harmful,which violates the party's substantive rights and procedural rights,increases litigation costs and falls short of the principle of efficiency.Civil legislation about litigation offset is inadequate in China.Civil substantive law did not clearly defined effect rules of offset,and China's civil law scholars accept unthinkingly the mainstream viewpoint of the German branch of Continental law systems:the theory of retrospective offset,which influence legislation.There are not provisions of the litigations offset in our actual civil procedure law.PartⅤ:Improvement of litigation offset in China.1.Civil substantive law should establish a new form and effect rules of offset behavior.The parties should claim offset to each other by indication,and could exercise in or out of the litigations.If the parties exercise offset out of litigation without controversy, it should come into effect when claiming;if the parties claim offset in the litigation,the effect of offset should occur after the adjudication has gone to effect.2.Civil procedural law should establish and improve the res judicata, litiscontestation,exercise,trial,appeals and other related systems of litigation offset,set up the parallel relationship between litigation offset and counterclaims,entitle the parties the right to choose in procedures.3.China should deepen the reform of the judicial system,establish a scientific and rational system for evaluating the performance of judges and the mechanism to ensure outlay for the courts,change the courts' exclusion or limitation attitude towards litigation offset,respect for the parties' right to choose in procedures,so that the provisions of litigation offset can be effectively followed by the courts,and we can give full play to litigation offset on its function and value.