An Essay On The Completion Of Civil Case Counterclaim System In China

The system of counterclaim which undertakes the justness and efficiency is a main institution of civil procedure. It is generally established in many nomocracy nations because of its special function, including equally protecting the two parties'right of bring a claim, preventing the contradictory sentence, promoting the acceptable resolving in dispute and optimizing the legal proceedings structure in order to promote the efficiency of litigation. However, there is not a real system of counterclaim in China. Due to the rough provision in legislation and operation chaos in practice, it is impossible to adjudge and guarantee the defendants'counterclaim. Therefore, it is the other way round---the party who should not bring a counterclaim did it in fact. In general, the contradiction between the singularity in legislation and complexity in judicial practice has affected the implementation procedure in the system of counterclaim. The increasingly acute contradiction indicates the necessity and urgency to improve the system of counterclaim. Therefore, the urgent task on hand is to establish a system of counterclaim that accords with the situation of our country, on the premise of knowing the reformation direction in the system of civil action in our country, understanding the development trend in related regulations and basing on comprehending the system of counterclaims in other countries.This paper aims at exploring ways of improving the system of counterclaim in our country, mainly using the comparison method, by introducing the method of bisection(compulsory counterclaim and permissive counterclaim) which is particular and perfect in legal provisions and judicial practice in the world, and related regulations in other countries, combining the present judicial situation in China to compare the differences between the outlook of litigation and the idea of litigation from macrocomparison( the difference of counterclaim view )and microcomparison(the difference of material system).The improvement of a system should have its own guiding idea, so as to the system of counterclaim. The sequence of the litigation value in the system of counterclaim, as well as the acceptation and rejection should be clear when necessary. It may lead to the extremity, either expanding or restricting the scope of application of the system of counterclaim, and violate the original intention of the system of the counterclaim. Therefore, it is necessary to fix on the balanced point on the segment made up of expansion and restriction so as to constitute the system of counterclaim. Presently, there is no reliable project to follow in our country to fix on the balanced point. The following points are put forward in this paper: the balance between the rights of litigation and the rights of counterclaim, the rights of counterclaim and the judicial authority, the balance between the objective and subjective standard of counterclaim.Under the direction of this guiding idea, knowing the theory of litigation in our country, the problems of repellency in the system transplant, ( for example, the system of subject matter of an action, the system of separation and joinder of proceedings the jurisdiction system) and the system (for example the procedure pretrial system, the system of lawyer agency and so on ) and based on the coordination of related civil action to put forward the following concrete systems: the subject of counterclaim, jurisdiction court, the counterclaim time, form, the standard of counterclaim and the limitation of legal proceedings.