Research On Statutory Set-off Rights For Claims That Have Passed The Statute Of Limitations

Legal set off is one of the reasons for the elimination of debt in civil law,and it has been regarded as an important system in civil law in various countries and regions in the world.China's law only makes a general provision on the legal right of set off.There is no clear provision on whether and how to exercise the right of set off.At the same time,the academic circles have different views on this issue,and the application of legal set off in judicial practice is also different.In order to solve the debt disputes between the parties and protect the fair interests of both parties,China needs to urgently improve the system of set off right.This article mainly takes the case as the starting point,uses the case analysis method,the literature research method,the comparative research method and so on research method,carries on the research to the legal set off right establishment and the exercise and so on related question of the creditor's right which has already passed the limitation of action,and expects to be able to have the help to our country's set off right system consummation.First of all,this paper uses the case analysis method,through the analysis and screening of a large number of judicial cases to investigate the judgment of whether and how to claim set off for the claims that have already passed the limitation of action in the trial practice,so as to lead to the problems to be studied in this paper.Due to the lack of guidance in substantive law and protection in procedural law,the relevant disputes of legal set off right are in confusion in judicial practice.Therefore,this paper attempts to lead to the relevant disputes from the beginning,and later demonstrates that claims that have passed the limitation of action can be claimed and how to claim the right of set off.Secondly,through the collection,identification,analysis and collation of the literature recorded by the predecessors,research on the literature,based on the previous people's relevant research status and achievements of the legal set off right system,the author understands that there are different opinions in China's academic circles and judicial practice circles on whether the claims that have passed the limitation of action can be set off.When should the parties claim the set off? Whether the parties can directly raise the set off defense or must first raise the counterclaim or bring a separate lawsuit when they exercise the legal set off right in the litigation? This is not clearly stipulated by the law,so there are still differences between the normal practice and the theory in the trial practice.Finally,by comparing the relevant literature in and out of the domain,we can know that the original developed countries or regions have relatively perfect provisions on the legal right of set off at the level of legislation and theoretical research.For example,the laws of Chinese Taiwan,Japan and Germany all stipulate that the creditor's rights that have passed the limitation of action can be set off.The set off has retroactivity and the effect of set off can be traced back to the time when the initial conditions for the establishment of the set off are met.The debts of both parties are extinguished due to the same amount of set off.In addition,Germany has a clear regulation on the specific way to exercise the legal right of set off.Although Japan's civil procedure law does not clearly stipulate the exercise of the right of set off in litigation and other related issues,Japanese scholars have also discussed the relevant res judicata issues in the defense of set off and the judgment conclusion of the court.Germany,Japan and Taiwan of China have done a lot to improve the system of legal set off right in terms of legislation and theoretical research.China's legal provisions on legal set off are relatively vague,which is not conducive to the protection of the parties' fair interests and the improvement of the efficiency of the court's judicial trial.Therefore,China should absorb the rationality of foreign laws and allow the claims that have passed the limitation of action to be set off.This paper analyzes and proves the rationality and feasibility of offsetting the claims that have passed the limitation of action,and then discusses the establishment requirements of legal offsetting the claims that have passed the limitation of action and how to exercise the right of legal offsetting.This paper also thinks that our country should make more perfect regulations on the legal right of set off from the aspects of substantive law and procedural law.For example,if the legislation adds that claims that have passed the limitation period meet the requirements of set off before the expiration of the limitation period,they should also be allowed to claim set off.In addition,the law should also clearly stipulate that the exercise of the legal right of set off by the parties in the litigation is to raise a set off defense,counterclaim or otherwise sue,and the parties have the right to choose.Under the condition that the legal set off defense is satisfied,the court should conduct the trial,but can't require the parties to sue or counterclaim separately on the ground that the cause of the set off defense is beyond the trial scope of the court.In addition,the law should also provide that the set off defense as the reason of judgment should have res judicata,which should be limited to the amount of set off claimed by the defendant,and the court's judgment on the set off defense should be substantive.When the parties should claim the set off needs to be investigated in combination with the specific cases.When the debts of both parties meet the set off requirements,the exercise of the legal set off right should not be excessively delayed.The legal right of set off has retroactive effect,and the effect of set off can be traced back to the time when it can be set off initially.