The Reflection And Reconstruction Of Our Country's Counterclaim System

Counterclaim system is an important system in civil action. With a long history, it has been adopted and well developed by most of the modern legal states in the world. Yet our country, compared with the advanced countries, no matter in legislation, in justice or in theories study, there is a long way to go. By historical, normal, comparative and illustrative means, based on the deeply study on the counterclaim system, the article reflects on the present condition of Chinese counterclaim system, and offers some suggestions on its reconstruction. In a certain sense, the study has some practical significance and value.Besides the introduction and the conclusion, the article is divided into four chapters as follows.Chapter 1 The history and the basic theories of the counterclaim system. Firstly, the article tracks back the history and introduces the process of the counterclaim system. Secondly, the article compares the different basic theories of the counterclaim system in order to defines the concept, nature, characteristic and value of the counterclaim system most reasonably, and offers the theories for Chinese counterclaim system reconstruction.Chapter 2 The comparison and study on the counterclaim system of two genealogy of law. The part mainly through the comparison and study on the legislation and theories of the counterclaim system of two genealogy of law and summarizes that continental genealogy of law has tight characteristic, but Anglo-American genealogy of law has spread characteristic. The author thinks the different characteristics are formed for the different choices on the value and function of the counterclaim system. These experiences can be referenced to reconstruct our country's counterclaim system.Chapter 3 The present condition and the cause analysis of our country's counterclaim system. The part through the study on legislation and justice of our country's counterclaim system, finds that the clauses are too simple in legislation, and counterclaim hasn't a uniform standard in justice. Then the article analyses the cause deeply from six aspects, and lays a practical foundation for our country's counterclaim system reconstruction.Chapter 4 The reconstruction of our country's counterclaim system. This part is the focal point of the article, In this part, the author starts with the principle of perfecting our country's counterclaim system, and thinks the perfecting process is to choose and re-choose the value of the counterclaim. Afterwards, in the article, the author points that the general principle is to realize the value of the counterclaim, and the basic principles including equality, efficiency of litigation, efficacy and management. Finally, concrete conception is suggested from seven aspects in order to reconstructive our country's counterclaim system.