论诉讼抵销在中国法上的实现路径

On the Chinese Approach of Set-off in Civil Litigation

诉讼抵销是指被告依据实体法规则,在诉讼过程中通过抵销消灭原告的实体请求权。我国理论界通说认为应当以抗辩的方式来实现诉讼抵销,少数说则认为应以反诉的方式实现诉讼抵销,而司法实务中却主要采取另诉说,实质上否定了诉讼抵销的实现。诉讼抵销在理论研究与司法实务上的脱节,根源于抗辩说和反诉说在我国民事诉讼法上均无明确规则,而司法实务操作者对效率和合法等功利目标的追求使其选择另诉说。为了落实当事人的法定权利,避免不必要的拆分诉讼,通过解释和适用中国法既有规则,提炼出实现诉讼抵销的具体路径:诉讼抵销的性质只能是抗辩,但其具体要件之一的"存在抵销主动债权"存在争议时却必须以诉的形式解决,可以将抵销主动债权作为反诉合并审理,但在不具备合并条件时法院应就本诉债权是否成立做出先行判决。

Set-off in civil litigation means that the defendant uses the right of set-off in civil litigation to eliminate the claim of plaintiff.There are three theories on how to treat set-off in civil litigation.At first,the majority of Chinese legal academia accepts the view of Civil Law system and insists it should be treated as the defense.Secondly,the minority of academia considers it as counterclaim.At last,the court in the judicial practice always denies the set-off and notices the defendant to file another lawsuit.The discrepancy between the theoretical research and the judicial practice can be explained by two reasons:the one is there is no clear rules on set-off in the Chinese Civil Procedure Law,and the other is judges pursue the value of judicial utility,such as efficiency and rightness.In order to implement the legal rights of the parties and to avoid claim split,it is necessary to extract the specific approach of set-off in civil litigation by interpreting and applying Chinese Civil Procedure Law.The nature of the set-off in civil litigation can only be considered as a defense,but one of its concrete elements must be resolved in the form of claim,and can be merged as a counterclaim.However,the court may pass a pre-judgment when the counterclaim can not be decided timely.