On The Reform Of China's Counterclaim System

As an important system in civil action ,counterclaim system has been prescribed by mordern legel states in legislations of civil procedure. Civil procedure law of China pre- scribes counterclaim system in terms of 52, 126, and, 129. But it is too simple to be operated properly. What is worse is that counterclaim is often disposed of too freely at will in judicial practice becouse there has no unanimous view about it in many theoreti- cal aspects in the research circle. The function of counterclaim is impeded and can not operate very well. On the basis of the comparison of the counterclaim system in the two families of law, this treatise try to evaluate the value and function of counterclaim again, and probe the critical problems in theory and practice of it comprehensively in order to re-construct the purpose of Chinese counterclaim system. The treatise has four parts. Part One. The Determination of the Cncept of Cunterclaim. Through the analysis of the concept of counterclaim in China and other states, this treatise concluded that the most important thing in determining the concept of counterclaim is to grasp its sub- stantive characters. The substantive charaters are as follows. â‘ Counterclaim is taken by the defandent;â‘¡Counterclaim is directed to the plaintiff or the plaintiff and the third party who connects to the plaintiff by the same interest; â‘¢Counterclaim is an entirely independent claim;â‘£The defandent has subjective interest in the claim. So the concept of counterclaim this treatise gives is that counterclaim is a independent claim, taken by the defandent who alleges subjective interest, directed to the plaintiff or the plaintiff and the third party. Part Two. The Function of Modern Counterclaim System. The function of coun- terclaim is the theoretical prerequisite for its existence. In the Continental Law System or in the Anglo-American Law System, counterclaim is orignated from offsetting the debt in civil litigation. In the process of evolving, the structure of its procedure and the social function of counterclaim system have divided and united again in order to adjust to the changed social life. In the end, modern counterclaim which has peculiar form of action and social function comes into being. The treatise has the view that promoting .3. the efficiency of litigation is definitely the most important value of modern counterclaimsystem, but after hundreds years' development, the function of it has far exceededthat. Counterclaim system has peculiar and important function in the aspects of pro-tecting due process, avoiding contradict ad judication, promoting friendly resolution ofdispute and suppling equal protection of the parties.Part Three. COmparison of Counterclaim System in the two famiIies of law.Through the comparison of the legislation and its major theory of counterclaim, thispart concludes that in the Continental Law System the counterclaim has the characterof contracting and in the Anglo -- American Law System, expanding. The treatiseprobes the causes of these characters. That becomes the fOreign legislative basis fOr therefOrm of Chinese counterc1aim system.Part FOur. Perfection of Chinese Counterclaim System. In this part, the treatisestates the present situation of Chinese Counterclaim System and analyses the causes ofthat, POinting out that the crucial disadvantage of it is the judges of China have toomuch discretion and the dispoSing of it is too free under the will. The causes of that arethe insufficient theorectical research and the disadvantages in judicature. FOr those fac-tors, the treatise has the view that the doctrine of respecting th...