抵销权在民事诉讼中的适用问题研究
发布时间：2019-01-03 15:18
【摘要】：抵销权作为形成权的一种,是民事实体法中规定的权利。抵销权的行使对当事人来说既可以免去相互给付的麻烦,节省履行费用,又具有债权担保的效力,避免先履行债务的一方蒙受损害的危险。我国《合同法》第99条和第100条对此作出了具体规定。民事诉讼中,被告通常会以减少或消灭对方诉讼请求为目的提出抵销的主张。但我国《民事诉讼法》并未对抵销权在民事诉讼中的适用问题进行规定。由于缺乏统一的规定,司法实践中对于被告提出抵销主张的情况处理时做法不一,不仅不利于保护当事人的合法权益,还会导致诉讼效率低下。故迫切需要完善民事诉讼立法中对于诉讼中的抵销权适用问题的规定。 本文所研究的诉讼中的抵销是被告在诉讼中提出抵销的意思表示。诉讼中的抵销是一种诉讼行为,又具有私法行为的性质,其在行使时除应适用诉讼法中的规则外,还应适用民法中关于抵销权行使的构成要件。被告在诉讼中行使抵销权应以抗辩的形式于一审法庭辩论终结前提出抵销主张。原告针对被告的抵销抗辩可以提出反抵销,来争取法院完全支持其诉讼请求。禁止当事人在诉讼中对于订有仲裁协议的债权主张抵销,既是对当事人意思自治的尊重,又是维护仲裁协议的效力的必然要求。对于存在管辖协议的债权,应视审理案件的法院对于被告主张抵销的债权是否有管辖权来确定是否允许被告在诉讼中主张抵销。法院对抵销抗辩的审理、判断必须在对原告所诉请的债权作出肯定的判断后才能进行。当被告在诉讼中提出诸多抗辩理由时,法院应首先对被告的其他抗辩进行审查,只有其他抗辩均不成立的情况下,才能审查抵销抗辩。原告针对被告的抵销抗辩提出异议时,不直接发生抵销权不成立的结果。法院无须审查原告的异议是否成立,而应向原告行使释明权,原告另行提起异议之诉。这样既可以保障被告诉讼中抵销权的实现,又可以防止原告异议权的滥用。抵销抗辩并非案件的诉讼标的,不发生诉讼系属的效果。判决理由中对抵销抗辩的判断是否具有既判力应根据案件情况的差异区别认定。 发达国家对诉讼中的抵销制度,无论在立法规定还是理论研究方面做得都较为完善。德国、日本以及英国、美国的诉讼法都对诉讼中的抵销制度做出了相应规定。我国现行民事诉讼法并没有关于诉讼中的抵销制度的规定。在我国民商事活动中,抵销权行使的法律依据主要是《合同法》第99条、第100条以及第83条的规定。因此,我国有必要引进和吸收外国关于这方面制度的成功做法,从实体法和程序法方面予以完善。
[Abstract]:The right of set-off, as one of the forming rights, is the right stipulated in the civil substantive law. The exercise of the right of set-off can not only avoid the trouble of paying each other, save the expenses of performance, but also have the effect of guaranty of creditor's rights, and avoid the risk of damage to the party who performs the debt first. Article 99 and article 100 of contract Law of our country have made the specific stipulation to this. In civil action, the defendant usually puts forward a claim of set-off for the purpose of reducing or eliminating the other party's claim. However, China's Civil procedure Law does not provide for the application of the right of set-off in civil proceedings. Due to the lack of uniform regulations, the practice of dealing with the defendant's countervailing claim is different in judicial practice, which is not only unfavorable to the protection of the parties' legitimate rights and interests, but also leads to the inefficiency of the lawsuit. Therefore, there is an urgent need to perfect the provisions on the application of the right of set-off in the civil litigation legislation. The set-off in the litigation studied in this paper is the intention of the defendant to set off in the action. The set-off in litigation is a kind of litigation act and has the nature of private law act. Besides the rules of procedural law, it should also apply the constitutive elements of the exercise of the right of set-off in civil law. The defendant should make a countervailing claim in the form of defense before the conclusion of the court of first instance debate. The plaintiff may counterset-off the defendant's countervailing defense in order to obtain the court's full support of its claim. It is not only the respect for the autonomy of the parties but also the necessary requirement to maintain the validity of the arbitration agreement. For claims where there is a jurisdiction agreement, it should be determined whether the defendant is allowed to claim set-off in the action, depending on whether the court hearing the case has jurisdiction over the claim of set-off claimed by the defendant. The court's judgment on the plea of set-off must be made after a positive judgment of the plaintiff's claim. When the defendant puts forward many defense reasons in the lawsuit, the court should first examine the defendant's other defences, only if the other defences are not established, can the offsetting defences be examined. When the plaintiff objects to the defendant's countervailing defense, the result of the non-establishment of the right of set-off occurs directly. The court does not need to examine the plaintiff's objection, but should exercise the right of interpretation to the plaintiff. This can not only guarantee the realization of the right of set-off in the defendant action, but also prevent the plaintiff from abusing the right of dissent. The countervailing defense is not the object of the action in the case and does not have the effect of the action. Whether there is res judicata in the judgment reason of offsetting defense should be determined according to the difference of the case. In developed countries, the system of set-off in litigation, whether in the legislative provisions or theoretical research are relatively perfect. The procedural laws of Germany, Japan and the United Kingdom and the United States all regulate the system of set-off in litigation. Our country's current civil procedure law does not have the stipulation about the offsetting system in the lawsuit. In civil and commercial activities in China, the legal basis for the exercise of the right of set-off is mainly the provisions of Article 99, Article 100 and Article 83 of contract Law. Therefore, it is necessary for our country to introduce and absorb the successful practices of foreign institutions in this respect and perfect them from the aspects of substantive law and procedural law.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D925.1
本文编号：2399561
[Abstract]:The right of set-off, as one of the forming rights, is the right stipulated in the civil substantive law. The exercise of the right of set-off can not only avoid the trouble of paying each other, save the expenses of performance, but also have the effect of guaranty of creditor's rights, and avoid the risk of damage to the party who performs the debt first. Article 99 and article 100 of contract Law of our country have made the specific stipulation to this. In civil action, the defendant usually puts forward a claim of set-off for the purpose of reducing or eliminating the other party's claim. However, China's Civil procedure Law does not provide for the application of the right of set-off in civil proceedings. Due to the lack of uniform regulations, the practice of dealing with the defendant's countervailing claim is different in judicial practice, which is not only unfavorable to the protection of the parties' legitimate rights and interests, but also leads to the inefficiency of the lawsuit. Therefore, there is an urgent need to perfect the provisions on the application of the right of set-off in the civil litigation legislation. The set-off in the litigation studied in this paper is the intention of the defendant to set off in the action. The set-off in litigation is a kind of litigation act and has the nature of private law act. Besides the rules of procedural law, it should also apply the constitutive elements of the exercise of the right of set-off in civil law. The defendant should make a countervailing claim in the form of defense before the conclusion of the court of first instance debate. The plaintiff may counterset-off the defendant's countervailing defense in order to obtain the court's full support of its claim. It is not only the respect for the autonomy of the parties but also the necessary requirement to maintain the validity of the arbitration agreement. For claims where there is a jurisdiction agreement, it should be determined whether the defendant is allowed to claim set-off in the action, depending on whether the court hearing the case has jurisdiction over the claim of set-off claimed by the defendant. The court's judgment on the plea of set-off must be made after a positive judgment of the plaintiff's claim. When the defendant puts forward many defense reasons in the lawsuit, the court should first examine the defendant's other defences, only if the other defences are not established, can the offsetting defences be examined. When the plaintiff objects to the defendant's countervailing defense, the result of the non-establishment of the right of set-off occurs directly. The court does not need to examine the plaintiff's objection, but should exercise the right of interpretation to the plaintiff. This can not only guarantee the realization of the right of set-off in the defendant action, but also prevent the plaintiff from abusing the right of dissent. The countervailing defense is not the object of the action in the case and does not have the effect of the action. Whether there is res judicata in the judgment reason of offsetting defense should be determined according to the difference of the case. In developed countries, the system of set-off in litigation, whether in the legislative provisions or theoretical research are relatively perfect. The procedural laws of Germany, Japan and the United Kingdom and the United States all regulate the system of set-off in litigation. Our country's current civil procedure law does not have the stipulation about the offsetting system in the lawsuit. In civil and commercial activities in China, the legal basis for the exercise of the right of set-off is mainly the provisions of Article 99, Article 100 and Article 83 of contract Law. Therefore, it is necessary for our country to introduce and absorb the successful practices of foreign institutions in this respect and perfect them from the aspects of substantive law and procedural law.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D925.1
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