Study On The Effect Of Set-off To Third Parties

Set-off system is a very important basic system in law of obligation.As a reason for the termination of debt,it is increasingly valued and favored by people for its functions of simplifying liquidation,maintaining fairness between parties and guaranteeing realization of creditor's rights.It takes place between the two parties who are in debt to each other and has the effect of reducing or eliminating the debts between the two parties and realizing the creditor's rights.However,when a third party participates in or intervenes in the affected creditor's rights,whether creditor can claim offset when meeting the legal requirements and to what extent the act of claiming set-off constrains a third party become a problem.That is how the set-off works for a third party.The resolution of this problem affects the scope of the debtor's right of set-off and the protection of the rights and interests of a third party.However,at present,the civil law circle in our country pays little attention to the offset system,and the research also focuses on the discussion of the retroactive effect of offset,while there is no theoretical research about the effect of set-off on a third-party.Therefore,it is necessary to analyze and study this problem.On the basis of previous research results,this paper analyzes the current situation and shortcomings of our country's legislation from the perspective of offset in the assignment of creditor's rights and offset in the seizure,and further clarifies the core issues which influence the effect of offset on third parties through comparative law investigation.Finally,it puts forward some suggestions on the improvement of China's relevant offset system.In addition to the introduction and conclusion,the full text includes four chapters:The first chapter is an overview of the effect of set-off on third parties.The scope of set-off advocated by the right holder is limited by the elements of set-off,so the concept of set-off is sorted out at first,and it is pointed out that the set-off in this paper mainly refers to legal set-off.Secondly,it analyzes the value and function of offset system.Finally,it analyses the significance of the effect of set-off on third parties,and puts forward the common performance of the effect of offset on third parties in legislative or judicial practice,which lays the foundation for the following chapters.The second chapter is about the offset in the assignment of creditor's rights and its effect on a third party.The right of set-off is an important right of defense for the debtor in the assignment of creditor's rights.The scope of the debtor's claim for set-off affects the scope of the effect of set-off on the assignee.In this part,the author firstly analyzes the current legislative situation and existing problems of the debtor's right of offset in the situation of assignment of creditor's rights in China.Then,aiming at the existing problems in our country,this paper investigates the research on the debtor's right of offset in the case of assignment of creditor's right in foreign countries or regions from the perspective of comparative law in order to find out the factors that affect the scope of debtor's claim for offset in the case of the assignment of creditor's rights.The third chapter is about set-off when creditor's rights are distrained and its effect on third parties.When the passive creditor's rights are distrained,the scope of offset claimed by the right holder affects the scope of effect of offset on the seized creditor.Firstly,the author combs the current law of our country,points out that that there is no legislation on offset in seizure in our country at present,and there are legislative gaps and practical problems brought about by them.Then,the author investigates the judicial practice or legislation of Japanese civil law,Taiwan civil law and German civil law in order to understand the scope of the effect of offset on a third party when the creditor's rights are seized and provide reference experience for the establishment of offset system in seizure in our country.The fourth chapter is about the core issues and future prospects of the effect of set-off on third parties.Based on the analysis of the requirements of the debtor's claim for offset under the above-mentioned systems of assignment and seizure of creditor's rights,this paper points out that the key to the effect of offset on third parties lies in how to judge the offset expectation of the right holder,and different judgment criteria affect the scope of effect of offset on a third party.Then,aiming at the existing problems in our country,the author puts forward some suggestions to improve the offset system in the assignment of creditor's rights and in the seizure.