债的消灭制度之法定抵销权探究
发布时间：2019-04-01 14:36
【摘要】：抵销是指在双方当事人互负债务的情况下，一方当事人可以将其债务与对方当事人的债务互相冲抵，，使双方的债务归于消灭。在经济生活中，以抵销的方式达到消灭债的目的，是履行债务的一种简便的方式。我国《合同法》第99条建立了我国的法定抵销制度，但是法定抵销制度长期以来并未得到理论界和实务界的重视，现行民商法规范关于法定抵销的规定只是对其他国家立法模式的一种借鉴，规定比较笼统，具体适用范围、条件及操作上还缺乏明细规范。民事诉讼法对于法定抵销制度在民事诉讼中的实现方式亦未做具体的规定，致使审判实践中法定抵销制度的适用现状混乱，甚至在法院的判决中同一案件因承办人员法定抵销的行使要件认识不一出现各异的判决结果。本文笔者试图通过对法定抵销权制度的理论分析、各国立法比较分析，抵销权行使中所面临的问题等进行分析后，有针对性地对完善我国法定抵销权制度提出相应对策和建议，为我国民事审判中法定抵销权的行使进一步完善提供参考，以期能对审判实务操作有所帮助。 本文拟分如下三部分：第一部分抵销权理论概述，具体内容包括抵销权的概念和种类、法定抵销权的起源和发展；第二部分对法定抵销权的性质及功能进行了论述，并列出法定抵销权行使的积极要件和消极要件；第三部分，先论述法定抵销的行使方式，包括诉讼外行使和诉讼中行使，然后对法定抵销的行使效力进行分析，主要论述法定抵消的溯及效力，即溯及至抵销适状之时双方对等数额的债权相互消灭，然后重点对现阶段法定抵销权在行使过程中遇到的有争议的几个问题包括已过诉讼时效之债权能否行使法定抵销、债权让与中是否允许抵销、在执行环节被执行人主张抵销时如何处理等热点问题进行分析论述，然后针对我国现阶段法定抵销权制度的立法现状，指出我国立法之不足并有针对性的提出完善建议。
[Abstract]:Set-off means that in the case of mutual debt between the parties, one party may set off its debts with the debts of the other parties, so that the debts of both parties can be eliminated. In economic life, the elimination of debt by offsetting is a simple way to fulfill debt. Article 99 of the contract Law of our country has established the legal set-off system of our country, but the legal set-off system has not been paid attention to by the theoretical and practical circles for a long time. The regulation of legal set-off in the current civil and commercial law is only a reference to other countries' legislative models. The provisions are relatively general, specific scope of application, conditions and operation of the lack of detailed norms. Civil procedural law also does not make specific provisions on the realization of statutory set-off system in civil litigation, which leads to confusion in the application of legal set-off system in trial practice. Even in the judgment of the court, there are different judgment results in the same case because of the requirement of legal set-off of the contractor. Through the theoretical analysis of the legal set-off right system, the comparative analysis of the legislation of various countries, and the problems faced in the exercise of the set-off right, the author tries to put forward the corresponding countermeasures and suggestions to perfect the legal set-off right system of our country, according to the analysis of the theory of the legal set-off right system in this paper. It provides reference for further perfection of the exercise of legal set-off right in civil trial in order to be helpful to the operation of trial practice. This paper is divided into three parts: the first part is an overview of the theory of the right of set-off, including the concept and types of the right of set-off, the origin and development of the right of legal set-off; The second part discusses the nature and function of the right of legal set-off, and lists the positive and negative elements of the exercise of the right of legal set-off; The third part discusses the way of legal set-off, including out-of-action and in-action, then analyzes the effect of legal set-off, mainly discusses the retroactive effect of statutory set-off. At the moment when the right to set-off is applicable, the equal amount of claims of both parties is eliminated, and then the controversial issues encountered in the exercise of the right of legal set-off at the present stage are emphasized, including whether the claims which have passed the statute of limitations can exercise the statutory set-off. Whether it is allowed to set off in the assignment of creditor's rights and how to deal with the hot issues such as how to deal with it when the executor advocates set-off in the execution link is analyzed and discussed. This paper points out the deficiency of legislation in our country and puts forward some suggestions to perfect it.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.6;D925.1
本文编号：2451641
[Abstract]:Set-off means that in the case of mutual debt between the parties, one party may set off its debts with the debts of the other parties, so that the debts of both parties can be eliminated. In economic life, the elimination of debt by offsetting is a simple way to fulfill debt. Article 99 of the contract Law of our country has established the legal set-off system of our country, but the legal set-off system has not been paid attention to by the theoretical and practical circles for a long time. The regulation of legal set-off in the current civil and commercial law is only a reference to other countries' legislative models. The provisions are relatively general, specific scope of application, conditions and operation of the lack of detailed norms. Civil procedural law also does not make specific provisions on the realization of statutory set-off system in civil litigation, which leads to confusion in the application of legal set-off system in trial practice. Even in the judgment of the court, there are different judgment results in the same case because of the requirement of legal set-off of the contractor. Through the theoretical analysis of the legal set-off right system, the comparative analysis of the legislation of various countries, and the problems faced in the exercise of the set-off right, the author tries to put forward the corresponding countermeasures and suggestions to perfect the legal set-off right system of our country, according to the analysis of the theory of the legal set-off right system in this paper. It provides reference for further perfection of the exercise of legal set-off right in civil trial in order to be helpful to the operation of trial practice. This paper is divided into three parts: the first part is an overview of the theory of the right of set-off, including the concept and types of the right of set-off, the origin and development of the right of legal set-off; The second part discusses the nature and function of the right of legal set-off, and lists the positive and negative elements of the exercise of the right of legal set-off; The third part discusses the way of legal set-off, including out-of-action and in-action, then analyzes the effect of legal set-off, mainly discusses the retroactive effect of statutory set-off. At the moment when the right to set-off is applicable, the equal amount of claims of both parties is eliminated, and then the controversial issues encountered in the exercise of the right of legal set-off at the present stage are emphasized, including whether the claims which have passed the statute of limitations can exercise the statutory set-off. Whether it is allowed to set off in the assignment of creditor's rights and how to deal with the hot issues such as how to deal with it when the executor advocates set-off in the execution link is analyzed and discussed. This paper points out the deficiency of legislation in our country and puts forward some suggestions to perfect it.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.6;D925.1
【参考文献】
相关期刊论文 前2条
1 廖军,解春;抵销与反诉——历史与价值的探讨[J];比较法研究;2005年01期
2 肖祥礼;民事诉讼中被告的防卫——抵销[J];邵阳学院学报;2003年04期
本文编号：2451641
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