On the perfection of China's liquidation and offsetting system
论我国清偿抵充制度之完善

摘要

《民法典》中关于清偿抵充制度新增了债务人指定抵充的规定，但该规定过于泛化，尚待完善。其中包括关于约定抵充的方式以及达成合意的时间问题，且合意达成时间还会涉及对双方当事人的效力以及对第三人的效力问题；指定抵充的方式以及在法定抵销情形下指定抵充如何适用的问题；法定抵充中关于未规定“均未到期”的债务应该怎样抵充，笔者主张可以类推适用“均到期”之规定；也未区分担保的类型，负担轻重界定标准模糊不清，在此两种情形下宜采取清偿比例原则以解决；诉讼时效期间届满的债务能否抵充存在争议，笔者持否定观点；利息、相关费用的适用范围如何也有待细化。

Abstract

The provision on the debtor's designation of set-off has been added to the Civil Code on the system of liquidation and set-off, but the provision is too generalized and needs to be improved. These include the issue of the manner of agreed set-off and the time for reaching the agreement, which will also involve the effectiveness of the parties and the effectiveness of the third party; the method of appointment of set-off and how to apply the designation of set-off in the case of statutory set-off; how the provision of "all due" should be applied by analogy in statutory set-off on debts that are not stipulated to be "all unmatured"; nor does it distinguish between the types of security, and the criteria for defining the weight of the burden are vague. In these two cases, it is advisable to adopt the principle of repayment ratio to resolve the matter; there is adispute over whether the debt that has expired during the limitation period can be offset, and the author holds a negative view; and the scope of application of interest and related expenses also needs to be refined.