On Counterclaim System In Civil Procedure

Counterclaim, as a kind of special independent lawsuit, performs an important role in civil suits. Counterclaim system has a rich connotation. By means of consolidation of hearing, the principal claim and the counterclaim which correlated to each other, we could simplify lawsuit procedures and avoid different sentences to a same course. Therefore, nations and areas in the world have all established the counterclaim system in succession, in order to carry out the counterclaim system's function to civil suits. Our country has also established counterclaim system under the law, but because of legislation condition that time, the counterclaim system was too general to meet the requirement nowadays. Sparseness of the legal norms goes against the realization of the counterclaim system's value. Besides, it plays into some of the lawless persons'hands. This paper analyzes the correct connotation of the counterclaim system and, at the same time, learns from legislative cases of related nations and areas. It aims at existing problems in the rules and practices, analyzes the causes of the problems, and gives corresponding solutions, in order to consummate rules and constructions of our counterclaim system, and make it play its proper roles.This paper is in consistence of four parts, except the forward introduction and conclusion:The title of the first chapter is"summarization of counterclaim system", it provides an overview of counterclaim system: introduce its emergence and development, as well as its definition and categories, and the value of counterclaim system. This part which defines basic concepts and introduces basic content of the system lays the foundation for the investigation of counterclaim system below.The title of the second chapter is"correlation of counterclaim system and other related systems", it investigates the relations between the counterclaim system and other related systems, mainly between counterclaim and lawsuit, principal claim and defense. By contrasting, we can gain a better understanding of counterclaim system. Counterclaim, as an independent lawsuit, has common characteristics as other lawsuits. At the same time, counterclaim, as a kind of special lawsuit, has its own distinctive characteristics. There exist antagonism between principal claim and counterclaim. Although counterclaim happens after principal claim, once it is accept, it is not influenced by withdraw or rejection of the principal claim. Counterclaim is a kind of lawsuit, hence, there are fundamental differences from defense in way of remedy。The title of the third chapter is"the filing of a counterclaim", the paper labors on the subject, time and the court of the counterclaim respectively. Comprehensively considered the existing practical and theoretical problems in counterclaim system, it put forward its own measures, based on surveying laws and studies of the correlation nations and areas. That is, where the appropriate extension of parties concerning the counterclaim can be established, the expiration of filing a counterclaim shall be on the point of conclusion of oral hearing, and the court accepting the principal claim shall be the component court to hear the counterclaim, provided exclusive jurisdiction must be followed.The title of the forth chapter is"the settlement of a counterclaim", it discusses treatments in different situations. Firstly, it describes the review content of the counterclaim, and consummates the descriptions of the review content in our country. Secondly, it emphasizes on defining and refining the counterclaim system's central element: implicate, in order that the judge and the parties could easily catch the relation between principal claim and counterclaim. Last, it analyzes the problems about counterclaim in the first instance and the second instance, suits the remedy to the case, to make the counterclaim system play its proper role.