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Study On The Offset Issues In The Japanese Civil Procedure

Posted on:2017-11-11Degree:MasterType:Thesis
Country:ChinaCandidate:L LiFull Text:PDF
GTID:2336330488472507Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Set-off as a way to eliminate debts of the civil law, having secured debts and claims functions, important for realization and protection of rights of the parties. China’s "Contract Law" Article 99 While the right of set-off provision is made, but China’s "Civil Procedure Law" to offset the exercise of the proceedings has not made any provision. Lack of legislation such confusion judicial practice, mostly taken by the Court is inadmissible, another complaint or counterclaim inform other ways to offset the litigants presented for processing, limiting the exercise of the right of set-off party in the litigation. To clarify the theoretical understanding and correct practice of judicial practice confusion, this article on the lawsuit in Japan offset as the research object, the offset from the nature of the proceeding as a starting point, there are more contentious litigation department of litigation offset awareness to study the case and the issue of res judicata, trying to view Japanese doctrine and practice of the analysis of these issues, in-depth analysis on the applicable offset litigation situation and lack of identify can learn from, improve our proposed litigation offset by the proposed system.This paper is divided into four parts, the body of a total of three thousand words:Part One:The offset nature of the Japanese action. For the debate on the nature of the proceedings offset, mainly around the private behavior that legal action that the compromise,said offset and said conditional expansion. Because litigation is offset relative to the substantive law and procedural law interlaced fields, qualitatively different from their different theories, in contrast to all based on the theory, I believe that the action should be taken to offset the nature of the conditions attached to offset said that offset the proceedings in the case of entities not be judged by the Court on the substantive law of effect does not occur.Part Two:Japan offset by litigation and litigation Relationship type repeat analysis. Japan theoretically offset by litigation defense if an objection Claims in the case of litigation system,namely the defense of set-off or on whether the proceedings apply by analogy Japan repeated litigation of Civil Procedure Section 142 prohibition this issue has been controversial. This article first type of litigation, defense and counter-parallel type first type of case depth analysis and discussion. Although the Court judgment that the entity generating offsetting defense of res judicata, but the lawsuit is not offset complaint nor counterclaim, but a defensive approach, the case does not generate litigation system, and can not be applied byanalogy or repeated litigation prohibitions.Part Three:Japan offset by litigation res judicata. Traditional theory holds that civil law limited the scope of the principle of res judicata objectively judge made the decision in the main text, but most countries and regions are also exceptions to the provisions of the judgment on the grounds of the contested judgment also produced offset res judicata. Based on the above reasons to offset generated res judicata and restrictions on the proceedings analysis, that the objective scope of the proceedings should be limited to offsetting produce res judicata court judgment against the creditor’s rights situation of the entity, and only to the demands of creditors and the like the amounts.Part Four:Revelation System on China to offset the Japanese action. China’s "Contract Law" Although offsetting system makes provision, but the "Civil Law" is not to make any set-off litigation provision in practice throughout the court proceedings on offsetting handled confusion, mainly to confuse and to offset the litigation res judicata were not offset with counterclaims understanding the proceedings fully affirmed. In this paper, the Japanese system of litigation offset the Enlightenment, considered it necessary to clarify the difference between the offset and counter-claims litigation, in our country there is still a clear under established on a separate lawsuit offset system a necessary prerequisite, from the substantive law and both the procedural law of the offsetting proceedings perfect.
Keywords/Search Tags:Offset by litigation, defense, counterclaim, Litigation Department of the genus, res judicata
PDF Full Text Request
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