On The Pluralistic Implementation Method Of The Litigation Offset

In the case of litigation offset,it refers to the system of the mutual elimination of money or alternative debts between the parties and the mutual elimination in the same amount through litigation procedures.In Germany and Japan and the Taiwan area of our country,the system of litigation offset has been quite perfect,In contrast to the mainland of China,the civil procedure law and the relevant judicial interpretations have not made any provision for the exercise of the right of set off in the lawsuit.The blank of the law leads to the confusion of the offsetting application in the trial practice,and in order to protect the function of settling the civil dispute quickly,this article takes the way to offset the litigation as the object of study.In this paper,to offset the civil law as the starting point,by defining the nature of civil law and the location of the property to offset the litigation offset,and on the basis of the continental law system and Anglo American law system and China's judicial practice,to determine the implementation of litigation offset should be a defense,counterclaim and prosecuted three.In order to ensure the operability of the three ways of realization,this paper takes the relationship between the original claim and the defendant's opposition to the creditor's rights as the standard to set up a case type.In order to verify the rationality and feasibility of this division,the article focuses on the countervailing defense,and expounds the operation and legal effect of countervailing procedure in litigation,and puts forward some corresponding suggestions for improvement.In addition to the introduction and conclusion,this article is divided into four parts:The first part is to locate the attribute of the offset.This article first compares and analyzes the nature of the offsetting in the foreign civil law,and makes the offsetting in the civil law in mainland China as a unilateral legal act(right of formation).Based on this,we compare and analyze the four pros and cons of the nature of the offsetting in litigation,and argue that the cancellation of litigation in China's mainland has both the dual attributes of private law and litigation,and the conditions should be taken as appropriate.The second part expounds the way of realization of litigation offset.First,on the basis of summarizing the litigation practice of continental law system,Anglo American law system and Mainland China,we think that the way of litigation should be diversified;Secondly,based on the correlation between the original claim and the fact base produced by the defendant'sopposition to the creditor's rights,we classify the cases in the litigation way.In the case of the original claim for the claim and the defendant's opposition to the same event,the defense should be taken;In the case of the original claim for claims and the defendant's opposition to the same event,the counterclaim is preferred under the conditions of meeting the counterclaim.When the application of counterclaim is incomplete,it should be set off at the level of execution by another way of prosecution;Finally,the reasonableness of the division is demonstrated from the scope of the trial and the objective scope of the res judicata.The third part is the trial which is set off in the lawsuit.Taking the countervailing argument as the emphasis,this paper discusses the application of countervailing procedure in four aspects from the aspects of trial elements,trial order,burden of proof and judgement result,and puts forward some corresponding suggestions for improvement.Based on the analysis of the preparatory function of the intermediate judgement on the final judgement,this paper argues that it is necessary to introduce the intermediate judgement system in mainland China,so as to ensure that the litigation can set off the function of solving the civil disputes quickly.The fourth part is the legal effect of countervailing the lawsuit.This part includes two contents,one is the relationship between the litigation and the prohibition of the principle of repeated prosecution.Whether the first or the first lawsuit defense,or defense against the creditor's rights in the coexistence of type,to form the proceedings in the exercise of defense will not produce litiscontestation effect,thus having no violation of the prohibition of repeated prosecution principle concerns;secondly,the objective scope of res judicata and suggestions for improvement of litigation offset.Through the analysis of mainland China on the current situation of the objective scope of res judicata,and draw lessons from Germany and Japan res judicata theory,this paper argues that the res judicata principle should be limited to the text of the judgment,but with the exception of judgment reason about litigation offset defense judgment resjudicate,specific objective scope and offset defense res judicata should be "against the creditor does not exist" as appropriate.