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根据大陆法系的理论通说,判决既判力客观范围原则上限于判决主文中的判断,但传统理论在承认这个原则之外也例外地承认抵销抗辩这种判决理由的判断产生既判力。在我国司法实践中,有大量案件都出现了被告提出抵销抗辩作为防御方法的情形,但我国现行的民诉法对抵销抗辩既判力客观范围并没有相关内容的规定,程序立法的空白导致了我国法院在处理此问题时方法不一,因此,有必要在理论上对其进行研究。只有使抵销抗辩产生既判力才能防止当事人对该抵销抗辩的重复使用,有利于一次性解决纠纷。要使得对抵销抗辩作出的判断发生既判力,以其已经经过实体上的判断为必要条件。抵销抗辩产生既判力的特殊性在于,反对债权在抵销额度范围内产生既判力,经过法院实体审理的抵销抗辩才能产生既判力,抵销抗辩审理程序的确定性。因此,对抵销抗辩的既判力客观范围进行类型化分析,构建我国的立法规定,在民事程序法中明确规定:当事人主张抵销抗辩,其成立与否经实质裁判,以主张抵销的数额为限,有既判力。
According to the theory of civil law, it is said that the objective scope of the res judicata is confined in principle to the judgment in the main text of the judgment, but the traditional theory also acknowledges this principle as an exception to the recognition of the judgment of offsetting the defense. In our country’s judicial practice, there are a large number of cases in which the defendant filed a counter-defense as a defensive method. However, there is no relevant content in the current Civil Procedure Law of China to offset the objective scope of res judicata. The blank of procedural legislation has led to Our courts have different approaches in dealing with this issue, so it is necessary to study them theoretically. Only the resumption of defenses arising from the res judicata to prevent the parties to re-use of the defensive defenses, is conducive to a one-time settlement of disputes. Resolute judgment should be made on the basis of the judgment of the counterclaim, which has already been judged by the entity as a necessary condition. The particularity of the res judicata in counteracting defenses lies in the fact that the objection claims generate the res judicata within the scope of the offsetting amount, and the rescission defenses which are tried by the court entities can produce the res judicata, which can offset the certainty of the defensive proceedings. Therefore, the type of res judicata counter-offensive objective analysis of the scope of the construction of our legislative provisions in the civil procedural law clearly stipulates: the parties claim defenses, its establishment or not after the actual decision to offset the amount of Restricted, Restricted.