The Exercise Of The Right Of Legal Set-off

Legal right to offset system is one of the important systems of civil and commercial law field. But at present, many contents of the legal system of offset have not stipulated in our country "contract law", which also led to the operability of legal offset in the judicial practice is not strong. This cannot give full play to the function of this system. In this paper, this paper by introducing the typical cases of the legal right to offset the exercise in judicial practice and combining with the related provisions of the "contract law" in our country to put forward about the problems of legal right to offset in the exercise requirements and the way of exercise.And by analyzing the legislation and theory of different countries and regions about the legal right to offset the study of the theory of the exercise, the author proposes own views. The author expects this paper is beneficial to the improvement of the system of legal right of offset in "contract law”, which is the main purpose of the paper writing.This paper is divided into the following four parts:In this paper, the first part introduces four cases and the court verdict, by analyzing the case results of similar but not very same and the focuses of controversy to put forward the problems of legal right to offset in the exercise requirements and the way of exercise, which are whether in elements of the legal exercise of the right to offset including natural debt of the statute of limitations has passed and the legal right of offset in the lawsuit should be how to exercise.In this paper, the second part expounds whether the legal exercise of the right to offset requirements including the debt that has passed the prescription of action. The view of this paper is that the natural debt that has passed the prescription of action can be set off.From the perspective of interpretation of civil law, the legal provisions of exercising offset right does not prohibit the natural debt that has passed the prescription of action can be set off.From the perspective of the prescription of action,this is in accordance with the validity of the prescription of action.After the prescription of action is completed, the other side just has the right to defense and the debt is still existing.From the perspective of the function of the legal system of offset,this is also consistent with the function of legal set off system that improve the realization of the possibility of creditor's rights and the function of guarantee creditor's rights.In this paper, the third part is to discuss the problem of legal right of set off in litigation. In the litigation procedure, the legal right of set off can be put forward by way of set off defense.If the debt can also meet the conditions of counterclaim,the legal right of set off can be put forward by this way. And the parties have the right to choose the two ways.The feasibility of the claiming to set off defense in litigation is that it is consistent with the substantive law and procedural law and it is also the natural extension of the civil rights of the parties in the proceedings.The scope of the court hearing is still around the plaintiff's litigation request.In the trial, the court should try to hear the offset defense in order to find out the facts of the case, solve the dispute between the two parties, reduce litigation costs, and save judicial resources.The fourth part of this paper is to improving suggestions of the exercise of the right to set off.Legal offset in the legislative and judicial system in the future should be based on the litigation efficiency, procedural justice, order and stability as the value orientation of reform.In legislation, the legislature should increase the number of provisions on the set off system and thinning of the contents of the law.In terms of the exercise of statutory right of set off, the natural debt that has passed the prescription should be stipulated.In the way of exercising the right of legal set off,the legal right of set off in a suit can be exercised in the form of an offset defense should also be stipulated in the law,and the law should regulate the judicial procedure of the court to deal with the set off defense.In judicial practice, the judicial authorities can guide practice through the way of judicial interpretation and release of typical cases.