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抵销是债消灭的原因之一,它分为合意抵销和法定抵销,本文只就法定抵消进行讨论。一般情况下,债权债务会因抵销而消灭,但已过诉讼时效的债权债务能否因抵销而消灭?即一方当事人行使抵销权的时候,另一方对事人能否以对方的债权已过诉讼时效进行抗辩的问题。目前,我国立法并没有就这一问题制定相关的法律法规,在学理上也存在诸多分歧以致于在实践中,法院的裁决往往不能统一、法官的判决也没有正当化的理由。本文以德国民法理论和我国立法精神为基础,分析探讨制度背后所蕴含的价值取向,使此类案件的裁决具有统一性、判决具有正当性,为完善我国民法体系打好基础。
Offsetting is one of the reasons for the elimination of debt. It is divided into descriptive offsets and statutory offsets. This article discusses only the legal offsets. Under normal circumstances, the credits and debts will be eliminated because of offsetting, but whether the debt and debt that has passed the limitation of action can not be extinguished by offsetting. That is, when one party exercises its right of set-off, the other party can claim against the other party The problem of defenses has been over time. At present, our country’s legislation does not formulate relevant laws and regulations on this issue. There are also many differences in the academic theory so that in practice, the court’s ruling can not be unified and the judge’s decision is not justified. Based on the German civil law theory and the legislative spirit of our country, this article analyzes and discusses the value orientation behind the system, and makes the ruling of such cases uniform and the ruling is justified, laying a solid foundation for improving the civil law system of our country.