Research On The Civil Counterclaim From The Perspective Of Comparative Law

As an important system of civil action, the counterclaim system has generally been established in the world, and China has also made the similar stipulation. However, Chinese counterclaim legislation has completely not been able to meet the judicial practice requirements. It needs to be reformed and consummated. Through some research methods, such as comparison,demonstration, and so on, this paper reviews foreign advanced ideas and system designs to make benefits to the reconstruction of Chinese civil counterclaim system. Except for the preface,the conclusion, the full text divides into four chapters:The first chapter is counterclaim system outline, which mainly analyzes the civil counterclaim concept, nature, value as well as the similarities and differences between counterclaim and other correlated systems,elaborates historical development process, then gives prominence to the counterclaim system,and provide the consummation of Chinese counterclaim system with rationale.The second chapter mainly comments on the civil counterclaim system of continental law system and common law system. Through comment on the civil counterclaim system of United States,Britain,France,Germany and Japan, this chapter abstracts the expansionary of continental law system and the contractility of common law system, and points out the development tendency as from contractility to expansionary. All of the aforesaid is to provide experience with the consummation of Chinese civil counterclaim system.The third chapter analyzes Chinese civil counterclaim system, which describes the characteristics, present situations, and thoroughly discusses reasons of the present situations: legislation flaw, theory flaw, judicial misconception, and regional protectionism.The fourth chapter proposes consummate suggestions: establish compulsory counterclaim and permissive counterclaim, explicitly prescribe the procedural essential condition, not establish re-counterclaim, and consummate the counterclaim system of second instance.