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抗辩和抗辩权是民法和民事诉讼法中两个常用概念,抗辩权也被民法学界通说认为是民事权利依其作用和功能不同而划分出来的一种基本权利形态①。但这两个基本概念在大量研究文献中并没有区分,很多时候被用来指称同一法律现象,甚至有些学者将只要含有对抗、免责等含义的概念都纳入抗辩权的范围②,再加上继受国外理论时翻译和理解的不同,让我们对两个基本概念更加困惑。这种混淆忽视了学说史上对二者的区分及其此种区分背后的理论深意,也
The defense and the right of defense are two common concepts in civil law and civil procedure law. The right of defense is also regarded by the civil law scholars as a kind of basic right form that the civil rights are divided according to their functions and functions. However, these two basic concepts are indistinguishable in a large amount of research literature and are often used to refer to the same legal phenomenon. Some scholars even include concepts such as confrontation and exemption in the scope of their rights of defense, The differences between translation and understanding in foreign theories leave us with more confusion about the two basic concepts. This confusion ignores the distinction between the two in the history of the doctrine and the theoretical implications behind the distinction