On The Consummation Of Our Country's Civil Counterclaim

As an important system in civil action, counterclaim system has been prescribed by modern legal states in legislations of civil procedure, which has its unique value. However, our country's legislation of counterclaim system is not enough counter and many other questions which demonstrate the need to improve the counterclaim system. This article taking , "On the consummation of our country's civil counterclaim" as a topic, utilizing such comparison as well as diagnosis and so on, makes a comprehensive research on the counterclaim system from each aspect, with a view to improving our country's counterclaim system .Except for the introduction and conclusion, this article has four Major Parts.The first part is on the general inspection of counterclaim system. In this part, author analysis various theory of the counterclaim connotation, and consider that the connotation of counterclaim is the defendant against the plaintiff for the request of an independent claim procedure in this lawsuit; And set forth indivisibility of counterclaims, I think, indivisibility is the substance conditions of counterclaims, and indivisibility the should be as the core element of counterclaim, which involved the cause of action at law or in fact with the subject of the appeal proceedings and involved with the methods of defense ; Finally author analysis the function of modern counterclaim system, such as equal avoiding contradict adjudication, promoting friendly resolution of dispute and supplying equal protection of the parties and so on.The second part is comparison of Counterclaim System in the two families of law. Firstly, author card and compare the Counterclaim System for the typical of common law countries of United Kingdom and the United States; and card and compare the Counterclaim System for the typical of Civil law countries of Germany and Japan; finally, through a comparative analysis of the country counterclaim of two families of law, author think Civil law countries focus on the pursuit of counter-claims proceedings and common law countries more on the side of counter-system efficiency and effectiveness of the pursuit of litigation for the difference between the value of goal, reflecting in the legislation on civil law countries is reflected in the provisions of the counter system is more stringent, while common law system of the counterclaim is more broad. Two Legal counterclaims system with reference to our country, but our country should not be a compulsory counterclaim. The third part is on the reconsideration of the Present situation of our country's counterclaim system. In this Part, the article firstly carries on an inspection of Present situation of our country's counterclaim from the legislation, justice and the theoretical study. Firstly, author think theory study of the current system of our country's counterclaim is not enough depth, but also has certain limitations; followed by counterclaim on the commonality and uniqueness of our country to carry out an analysis of the legislative status, the Legislative of our country's current system counterclaim exists counter-dislocation ; Finally, a lot of practice questions about counterclaim can't be unsystematic ,for the legislative system of our country counterclaim can not cover the application of counterclaim problems, leading to solemn proceedings and arbitrary of judicial practice and difficulty of exerting the counterclaim function.The fourth Part is a specific idea for the consummation of our country's counterclaim system. This part of expound consummation of our country's counterclaim system from the proposal of counterclaim, trial of counterclaim, the verdict of counterclaim and counterclaims of the special proceedings deal of counterclaim . The principle must be conducive to the protection of the parties' right, regardless of the proposal of counterclaim or the verdict of counterclaim. Therefore, we advocate the proposal of counterclaim to adopt a relaxed approach that can be used separately to the Counter-Memorial, at the pleadings can be made in book-like form, can also be used orally; As for the verdict of counterclaim that our attitude towards the use of strict, that is counter to the decisions and rulings and the appeal must be made the same verdict and determine norms book. In addition, the consummation in our country's counterclaim system, the function of counterclaim system should be maximized. Different level of the indivisibility decide the different ways of hear, the indivisibility of subject of the litigation or cause of action at law or in fact should generally be joined, and the indivisibility of defense, if possible delay caused by litigation, the court can suspend the merger trial.