论债权诉讼时效对破产抵销权的影响简

抵销是民法上债权债务关系终止的形式之一,该制度适用于债务人破产程序中,其意义有别,故比较法上就此采取了不同的处理.确认破产抵销权实际上使得享有该项权利的债权人获得了相对优先的保护.但其优先保护应当存有限度,如果债权诉讼时效已届满,在债务人的破产程序中则不得行使破产抵销权.鉴于抵销可以区分为法定抵销与合意抵销两种情形,虽然权利人均不得行使抵销权,但理论依据存在差异.

Study on How Creditor Right＇s Statute of Limitation Influence the Bankruptcy Set Off

Set-off is one of the forms to terminate the debtor-creditor relationship in civil law. And since there is of different meaning when set-off is applied in bankruptcy procedure, distinct ways to deal with the matter are adopted in comparative law. Acknowledging set-off in bankruptcy procedure is giving priority protection to the creditors who have the set-off right. But, there should be limits to the priority protection. If the limitation of action has expired, the right should not be exercised in the bankruptcy of the debtor. Regarding of the fact that set-off could be classified into legal set-off and consensual set-off, even though the conclusion of not being exercised is the same,the theoretical basis is of difference.