Research On The Legislation Of Mandatory Counterclaim System

Counterclaim system is an important system of civil action, containing very rich legal value. Foreign countries divide counterclaim into mandatory counterclaim and arbitrary counterclaim. The layout of mandatory counterclaim system is the materialization of the modern civil lawsuit in pursuing justness principal,efficiency principal and benefit principal. But the current laws of China does not have a detailed regulation on counterclaim system,only have arbitrary counterclaim system,lack in the legislation regulation of mandatory counterclaim this important system. This article considers that for the sake of raising the efficiency of lawsuit,increasing lawsuit benefit and realizing the justices of lawsuit,analyses need to be done in theory for the basic concept and value tropism on mandatory counterclaim system and has done the systemized research and evaluations on mandatory counterclaim system having United States as a representative,based on this,combining with the actual situation of counterclaim system of our country and related lawsuit system,set up in the legislation a mandatory counterclaim system that meets our economy,society, legal system development and expedite equity, high efficiency and harmony,in order to better exert the function of counterclaim system.Based on the above recognizant, this article has taken the"legislation research of mandatory counterclaim system"as the title and has done an overall research on the concept,value on mandatory counterclaim system and the legal regulations of the foreign countries on mandatory counterclaim system,based on this,the article has done the research on setting up the mandatory counterclaim system of our country from legislation design,the setting up of related system and perfection two aspects. The basic contents of this article include:Part one,the definition of mandatory counterclaim: When doing research on one system, we must first make sure the concept of this system and take the concept as the starting point of research. This chapter first researched on the concept of mandatory counterclaim. Mandatory counterclaim means that the lawsuit claim of the defendant must be brought up in the formality of the original appeal,be restricted by the reverse claim on the sentence of the original appeal. Mandatory counterclaim indicates that counterclaim and original appeal has a definite relation and must be brought up in the series of lawsuit in the original appeal,otherwise loss of interests effect will be produced. So,in the meaning of this kind of universality effect,mandatory counterclaim system can also be called mandatory counterclaim loss right to counterclaim system. Secondly,mandatory counterclaim is aimed at arbitrary counterclaim,so,through the analysis on the relation of arbitrary counterclaim and mandatory counterclaim,this article wants to deepen the understanding on the concept of mandatory counterclaim,provides the very basic theory support for the structuring of mandatory counterclaim system in our country.Part two,the value of legislation of mandatory counterclaim system,value emphasizing shows the purpose of basic spirit of the system intercalate,the research on the value of the system is the important component of the overall system research. This part uses the value analysis method,through the dissertation on equity value, efficiency value,benefit value and safety value of mandatory counterclaim system and provide legislation value leading of structuring the mandatory counterclaim system in our country.First,one of the projecting value of the mandatory counterclaim system is justice value. Through the sentence of original appeal,mandatory the restriction power of counterclaim judgment to ensure the authority of the judiciary and judicial unity, consequently guarantee the equity of judiciary and overpass the compel balance counterclaim rights and jurisdiction rights for counterclaim.Second, mandatory counterclaim system materialize the pursuing of efficiency value of modern civil lawsuit. Because mandatory counterclaim means the incorporate inquisitions of the two appeals have become a must,that has made the original two proceeding mix into one,solving two or more than two civil disputes with comparatively stronger associating in one proceeding.Again,mandatory counterclaim reflects the pursuing for the target of benefit value of civil lawsuit. The incorporate transacting of original appeal and the counterclaim makes the same lawsuit resource and process,solving two civil disputes at the same time can likely become possible. Its meaning is to be under the same conditions of the original lawsuit resources including manpower,material resources,financial and time etc. . Solve more civil disputes,can save labor, material resources and time,lessen the might enlarged cost because of separate lawsuit and do research on the lawsuit value target of keeping lawsuit invest invariable and obtain bigger benefit of lawsuit.Finally,mandatory counterclaim system can have the function of protecting the safety of the trade. Through mandatory counterclaim opinion countervail right to realize creditor's rights,make the creditor's rights in unsafe status being discharged,that fully materialize the safety value of law. Through mandatory counterclaim,it can impel countervail of debts and is more propitious to the problem of the court in"hard to execute".Part three,the legislation reference for mandatory counterclaim system: Using text review,prejudication review etc. demonstration research method,the author has done the preliminary research on the legal regulations of the United States and Taiwan area of our country on mandatory counterclaim system. Envisage the legislation imperfect of mandatory counterclaim of our country,through the review on the legislation and prejudication of mandatory counterclaim system of the foreign mainly the mother country–United States and based on this,the author has done a simple comparison and evaluation on the mandatory counterclaim system of China and that of the Unite States,providing the legislation data that can be used as reference in some degree for the structuring of the mandatory counterclaim system of our country.Part four,the legislation structure of mandatory counterclaim system in our country: Based on the theory support, value leading, legislation reference, this part has done the analysis and thinking on mandatory counterclaim system from the legislation design of mandatory counterclaim and the link up of the related systems of mandatory counterclaim system two aspects,considering,on one hand,when doing the legislation design of the mandatory counterclaim system itself,first duality counterclaim system should be set up,differentiate from the legislation of compel counterclaim and random counterclaim;second,definitude criterion the major composing parts of mandatory counterclaim from legislation,in detail it includes the preliminary important document of definitude criterion mandatory counterclaim,the actual important document of mandatory counterclaim and the general program important document of mandatory counterclaim,among which general program important documents approximately include party important document,time import document,domination important document. On the other hand,reinforce the legal link up of other lawsuit system and mandatory counterclaim system,in details,first, reinforce program relief consciousness,clearly regulate the sufficient program relief rights of the party; second,perfect the clear explain right system of our country, clearly regulated the clear explaining duty of impel the counterclaim of the judges;third,borrow the evidence open system of America and perfect the evidence exchange regulation of our country before examine.