Rethought And Reconstruction Of China's Civil Counterchange System

As an important system in civil action, the system of counterclaim dated from Roman times more than 1300 years ago. It can balance equality between parties and realize justice. The systems of counterclaim can be used to save the cost of litigation and prevent two judgments from being inconsistent by trailing the claim and counterclaim together. Therefore it has been attached importance to and has established in every country. But there are some questions in dispute and many defects about the system. In this paper, the author introduces the definition, essence, characteristics of the system and analyses the function of Modern Counterclaim, and then states the present situation of Chinese Counterclaim System and analyses the causes of it, then gives some advice of perfecting the concrete system of Chinese Counterclaim system.This paper contains 4 parts:Part One introduces the concept, essence, characteristics of counterclaim and gave new definition for it on the basis.Part Two states the development and function of the system of counterclaim. In the process of evolving, the structure of civil procedure and the social function of the system of counterclaim have divided and united and have acquired new function.In part three, the author describes the present situation of the system of counterclaim in our country and analyses the reasons for that. In this part, the author talks about the present situation and analyses the causes from legal,theory,practice.Part four, the author gives some advice of perfecting the system of Chinese Counterclaim, which is the important part in the paper .In this part, the author introduces the system of counterclaim in other countries and makes comparison with Chinese counterclaim. On the basis of comparison, the author concludes that we should absorb the advantages of the two law system and perfect Chinese counterclaim from four aspects. That is to say prefect the premise for accusation, divide the compellent counterclaim and discretionary counterclaim, the instance for counter-counterclaim, the trial of claim and counterclaim and so on.