| Offset is one of the causes of debt elimination, so it plays a very important role in civil law. However, in our country, legislation of set-off still has many defects, and the theoretical research of it also lacks depth and originality, especially on the processing problem of interests with the third people on the offset process, there is almost no relevant research in China. Thus on the basis of previous Chinese research achievements and some foreign legislation, this paper will study the effect on the third people caused during the application of set-off system, and what the effects are. What’s more, this paper also puts forward some suggestions on some problems existing in our current legislation.This paper is divided into three parts.The first part briefly introduces the concept and the basic structure of set-off in continental law system, and the concrete content includes the following four aspects:the position of offset system in the method body, the comparative study of set-off system, the classification and components of the set-off system, and the reason why this paper explore the relationship between offset and the interests of the third person.The first aspect contains the basic concept of set-off, its position in the method body, its generalization of function. In a word, this part is an overview of the set-off system; comparative study of set-off system dates back to the offset origin, respectively summarizes the legislation of the offset in the ancient Rome, France, Germany, Japan and China. Then the classification and constitution part mainly elaborates the theory classification of set-off system in foreign countries and the type classification in our country, and to the different types of offset, different types of establishing elements are respectively elaborated. In the last section, China’s legislation and theory deficiencies on the issue of off-set and the interest of the third people are summarized briefly, and also the writing purpose of this paper is pointed out.The second part is a detailed analysis on the effect of debt offset for the third party. This part is the core part of this paper including three pats. One is from the classification for theory of debt offset to analyze the impact on the third party; and then from the function of offset security to analysis, finally from several specific application to analysis of offset system. the first part is mainly analysis influence of automatic offset on the third party that represented by France. the second part is mainly expatiate the guarantee function could damage the interests of the third party. So, it should be regulation in legal practice; The last part is divided concrete circumstance to discuss the influence on the third part of debt offset. the main contents include the protection for the assignee on debt transfer;the relationship between the offsetting contracts that agreeing on offset and third party;the guarantee’right of setoff and the relationship between attach and set off. In this part, from reference some foreign legislation present regulation to doing theoretical analysis and proposed some own opinion.The third part is to sum up and sort out the front part of the article and it is mainly bases on the above analysis results, combines with our existing in legislation and theoretical study of the problem and puts forward some views and suggestions. This part mainly consists of three parts:firstly, it bases on existing defects in the legislation of our country, and points out that we should first make up gaps in the law, and then summed up my own views about consensual set-off, guarantee the right of set-off, offset and seizure problems, and puts forward the suggestions on the legislation of our country. Secondly, it starts from the perspective of theoretical research and suggests that China should continue to innovate in the field of the research and to expand the depth of the research from the different angles of view. Thirdly,it points out that, in the judicial practice in China we can also draw on the experience of judicial interpretation and case to temporarily make up the defects in the law.In short, although the witter analysis and combs about the protection of the third part on set-off, but due to the limited capacity of the witter, the article may still has some complement. But no matter how, the witter hope through this paper could do some benefit to offset system development. |
