Research On The System Of Legal Set-off

The Chinese existing debt set-off system is very imperfect,Contract Law has just two provisions on the set-off of debt,General Principles of the Civil law has nothing about it.The simple regulations,combined with little systematic discussion on it,cause the difficulty in the application of law,even in the judgement of the court, there is almost no application of the set-off defense.Because the consensual set-off is based on the agreement of the parties,the thesis mainly talks about the legal set-off. By studying the contemporary legistations of the legal set-off,the author tries to do syetematic arrangement on the system of legal set-off,contains the history of the legal set-off, the functions of legal set-off, the requirements of the right of legal set-off,the exercise of the right of legal set-off and the effect of legal offset, in order to put forward some tentative suggestions for the perfection of the system of set-off and for legal practice.This essay contains five parts:The first part is an overview on the legal set-off, including the concept of debt set-off, the history of legal set-off, the functions of legal set-off, and the author points out the right of legal set-off and legal set-off are different. In the part of concept,mainly citing the concept of off-set among the scholars. In the part of the historical,the thesis deals with the topic from the origin, then the major foreign country's civil code are taken as examples to show the differences. In the part of the functions of legal set-off, the author points out that legal set-off not only has the function of conveniency of the debt, but also the function of guarantee. And in the last, the author points out that the realization of legal set-off depend on the exercise of right of legal set-off.The second part focus on the requirements of legal set-off, emphatically analyzes some special situations, it is one of the most important parts. The requirements including positive requirements and negative requirements. In the part of positive requirements, the author mainly talks about the special situations,including the following points:the set-off right of joint debt set-off,; the limitation of the exercise of right of legal set-off in debt transfer; whether the penalty to use for to legal set-off; whether the debt which is beyond the limitation of action can be off-setted. The author divides the negative conditions of legal set-off into debt which is forbidden by the property of the debt, by the parties and by law. This essay mainly analyzes the existing views, and on this basis to draw my own views.The third part discusses the exercising method of the right of legal set-off, from two perspectives:subject and methods. This paper points out that the excising method of the right of legal set-off in our country is mainly involves mean socialist. And then, the discussion of the exercise of the right of legal set-off in court procedure is another important part of the thesis.The fourth part analyzes the validity of legal set-off. Mainly.discusses the contents of the validity and the retroactivity of legal set-off.The fifth part based on the previous paper, points out the weak point of the legal set-off system and put forward some suggestions on how to perfect the legal set-off system in China. That is:the Civil Law should regulate the legal set-off systematically in the chapter of the extinction of debt. The regulations which need be detailed contain the regulations of some special situations in legal set-off, we should also detail the debt which is forbidden set-off by law. When draw up the Civil Law, we should pay more attention to the connection of the substantive regulations and the exercising method of the right of legal set-off in civil procedure.For the sake of the limited capacity of the author, there might be many defects in this essay, thanks for the criticism and correction from my teachers.