论诉讼上抵销的行使

On the Exercise of Set-Off in Litigation

诉讼上抵销是指在民事诉讼中,被告首次提出以自己的债权抵销原告作为诉讼请求的债权。诉讼上抵销应统一以抗辩形式提出,当抵销债权与被抵销债权为非同一民事法律关系或是无相同的事实基础,法院可以将两个债权分开进行辩论。当抗辩的原因事实较为复杂、需要评估鉴定、双方争议较大、经过举证质证后仍然无法查清事实时,法院基于该适度、合理的原则可停止在诉讼中对于抵销事由的审查,驳回被告提出的抵销性抗辩,被告可就抵销债权另行起诉。

Set-off in litigation means that in civil litigation, the defendant first proposes to set off the plaintiff's claim with his own claim. In litigation, set-off should be put forward in the form of defense. When the offset claims are not the same civil legal relationship or have no same factual basis, the court can debate the two creditors’ rights separately. When the reasons and facts of the defense are complex, need to be evaluated and identified, the disputes between the two parties are large, and it is still impossible to find out the real time after the cross examination of evidence, the court can stop ex-amining the cause of set-off in the litigation based on the principle of moderation and rationality, reject the set-off defense proposed by the defendant, and the defendant can sue separately for the set-off claim.