Argumentation On Off-set Defense In Civil Litigation And Its Res Judicata

The frequent and complicated activities in the economic field bring about disputes of various types of credit and debt.In order to simplify the settlement and better protect the interests of creditors,the off-set system becomes an indispensable option.But off-set system is in a state of vacancy in Chinese Civil Procedure Law,which results in different thresholds of using right of off-set defense and different opinions on res judicata of off-set defense in legal practice.Faced with such situation,the legislative vacancy and legal practice demand call for establishing countervailing litigation.Meanwhile,counterclaim system in common law system and off-set defense system in civil law system provide us with two types of modes.This thesis will clarify various of types of using off-set right concerning different situation.This thesis is composed of five parts.The first chapter proves that different local courts have differentattitudes towards off-set defense by enumerating a list of cases,which violate fairness and justice of the judiciary.And the root cause of this phenomenon is the absence of legislation.The second chapter is a summary of the off-set defense in litigation.Firstly,the thesis list relevant provisions of Chinese Contract Law and elaborates its advantages.Then it classify the off-set defense system like the theory of private behavior law,the theory of litigation behavior and compromise theory.At the same time it also analyses advantages and disadvantages of those three theories.The third chapter discusses the modes of using off-set in the litigation.These two modes can be described as off-set defense and counterclaim system.The thesis analyses their commonalities,individualists,functions and respective applications.This thesis does not hold a single idea to a certain system.Instead,it uses different modes according to various situation like off-set defense,counterclaim systems and prosecuting.The fourth chapter focuses on the value of res judicata of off-set defense.It can resolve dispute quickly and prevent double payment.Then it clarifies the situation of res judicata that substantial judgementshould be made on creditor's rights and debts and should be confirmed by the verdicts.At last,it discusses the specific scope of res judicata by comparing amount of the claims and also discusses whether the opposition claims can be subdivided to explore the range of res judicata.The fifth chapter put forward constructive opinions from the entity level and system level.