Analysis Of The Consummation Of Counterclaim System Of Our Country

The countersuit system is an important system in modern civil lawsuit,it can avoid producing mutually contradictory decision, equally protects both parties' legitimate rights and interests , shows lawsuit fair; Moreover can raise the lawsuit benefit. Regardless to the court or the litigant, it is one item which it can realize fair and the benefit extremely well and it is a win-win balanced mechanism. But, in China, the law which was regards as the external system was introduced when the end of the Qing ,although it is regulated in the legal documents and the judicial interpretation , our country's legal Theorists also are quite warm to its research, but was still at the very young stage, the stipulations of countersuit system are crude in our country civil procedure law,the related elaboration are few, has not formed a complete countersuit system , the attention of the balanced mechanism which is contained in the countersuit is very few. Along with the further development of economic ,citizens'legal awarenesses are enhanced, the simple legislation and the crude simple theory already could not meet the judicial needs which grow day by day in the residential society.Therefore, this article attempts to excavate the advanced theories and the legislative experience in the two legal systems from the balanced mechanism angle, through analyze the origin of the unbalanced chaotic condition in the countersuit system's practice, instruct legislation and judicial reform by the restructuring of the countersuit theory , inquired about the efficient path to the path of our countersuit system.This article is composed of introduction and conclusion and three other parts: The first part explains what is the balanced mechanism in the countersuit system firstly, completes the concept for the later elaboration. Then analyzes the unbalanced situation at present and the origin of the unbalanced situation in our countersuit system. And the inspection of the unbalanced situation which exists in our countersuit system is divided into two parts:the inspection of the institutional unbalanced regulations of the sue and the countersuit system, the inspection of the unbalanced situation of judicial authority of judges and right of countersuit litigant. Analyzing the reasons of the unbalanced countersuit mainly from eight aspects of the value idea, the legislation, the judicature, the theory and so on.The second part emphatically elaborates legislative experiences of the balanced construction in foreign countersuit system . First carrying on elaborations of relatively complete countersuit regulations of UK-US and the mainland legal system, then carefully examines the countersuit regulations of the two big legal systems from angle of the countersuit system's balanced mechanism, excavates theories which are useful for our country's reform and the construction of the countersuit system.The third part mainly makes restructuring of countersuit system in our country civil action. First proposes my own opinion which related to the restructuring of balanced legislation idea and legislative principles in the countersuit system , then from the legislation, the judicature, the theory aspects, takes the balanced mechanism as breakthroughs point, carries on the construction of our country's countersuit system.