Research On The System Of Set-off

Set-off is a system that when two parties are in debt for each other, one of the parties can pay off the debt by his creditor's rights in order to exterminate the debt in the equal amount of the debt. The system of set-off is one of the important part of debt legal system in the civil law and is one of the causes to exterminate the debt. Set-off not only has the function of conveniency,liquidation ,but also has the function of guarantee .When the debtor pay off the debt by his creditor's rights, he can satisfy his creditor's rights even the other one is short of the ability to pay. Our country's current legislation of set-off is simple and blurred, which makes the system of set-off lacking operational quality in practice and appearing nominal setting. We can say that our country hasn't set up the system of set-off yet. This dissertation makes discussions on the character,doctrinal gist of set-off,kinds,the functions of set-off,the requirements of set-off,the forms and effect of set-off by studying on the history origin of set-off and the system of set-off in France,Germany and British. At the same time, the dissertation puts forward the suggestions of perfection according to the problems with China's legislation of set-off.The dissertation includes five parts: the summary of set-off,the basic theory of set-off,the requirements of set-off,the form and effect of set-off and the perfection of our country's system of set-off.The first part is the summary of set-off. This part starts from probing into the history origin of set-off ,then studies the system of set-off in France,Germany,British .Then the dissertation points out that set-off go through a process from being rejected at the beginning to being admitted in certain areas, then being applied broad step by step. And there are subtle differences that protect creditor or protect debtor among different countries'mode of legislation. At last, the dissertation explains the legislation situation of our country's set-off.The second part is the basic theory of set-off. This part analyses the character,doctrinal gist of set-off,kind,the functions of set-off. In the part of character, the dissertation explains the character of set-off is different because of the differences of the method of set-off in different countries; In the part of doctrinal gist of set-off, the dissertation points out that set-off should become an unattached cause to exterminate the debt, not attaching to any other systems; In the part of kind, the dissertation analyses legal set-off,arranged set-off and bankruptcy set-off; In the part of the functions of set-off, the dissertation points out that set-off not only has the function of conveniency and liquidation of the debt, but also has the function of guarantee.The third part is the requirements of set-off. This part is the most important part. In the part of positive requirement, the dissertation analyses the four positive requirements, and emphatically analyses whether creditor's rights that preponderate the pleading time can set off as a initiative creditor's rights,whether public creditor's rights can set off,the problems of involving related debt,transferring creditor's rights and guaranteed debt in the exertion of set-off; In the part of negative requirement, the dissertation analyses the three negative requirements, and emphatically analyses the problem in which situation creditor's rights that the third debtor obtain before detaining can set off.The forth part is the form and effect of set-off. the dissertation analyses three kinds of legislation :the theory of automatic set-off,the theory of independent set-off,the theory of absolute form set-off, making a conclusion that the theory of independent set-off has the merits and our country should adopt this kind of mode of legislation. In addition, the dissertation analyses the exertion and the effect of set-off by the theory of independent set-off.The fifth part is the perfection of our country's system of set-off. The dissertation puts forward the suggestions of perfection according to the problems with China's legislation of set-off.The dissertation makes a detailed and systemic research on the system of set-off on the basic of studying the legislation of some countries, hoping that the dissertation can impel the development of legislation and research of the system of set-off in China, thus besteading the establishment of the Civil Law of our country in the future.