论诉讼上抵销的性质——对双重要件说的再修正

On essence of countervailing in legal procedure:one more revising on theory of double conditions

我国大陆地区学界较少探讨诉讼上抵销的性质这一问题,与此相对,大陆法系国家与地区将其作为解决诉讼上抵销之实践困境的先决问题予以争论,并形成多种学说。其中,修正的双重要件说更符合该制度的目的与机能。该学说将抗辩行为成立并生效作为抵销行为生效所附的停止条件,却无法解释抗辩被撤回时抵销行为的效力所属。因此,有必要对此学说予以再修正,以抗辩行为的无效作为抵销行为之解除条件,使其符合实体法与程序法的原理以及诉讼上抵销的实践特征。

The countervailing in legal procedure is rarely discussed by academic circles in China's Mainland.But it is discussed as the first question of resolving the practical dilemma of litigation by civil lawcountries and regions,and many theories are formed. Among them,the revised double condition theory is more in line with the purpose and function of the system. The establishment and taking effect of the act of defense are taken as the additional condition of termination of taking effect of the countervailing act by the theory,which cannot explain the validity of the countervailing act when the defense is withdrawn. Therefore,it is necessary to revise the doctrine again. The invalidity of the act of defense is taken as the conditions for the cancellation of countervailing act,so as to conform the principles of substantive lawand procedural law,and the practical characteristics of countervailing in legal procedure.