Compulsory Counterclaim Research

Counterclaim system is an important design of the civil system. As the types of social disputes have become more and more complex and population growing day by day,various countries reform their counterclaim systerms to meet the demands in this time. In China, the provisions of legislation of the counterclaim still remain in the late Qing law-reform movement level.The legal provisions are very few and crude. There are no law to obey in practice sometimes, which leads to judge`s arbitrary in the application of counterclaim. And there are also the problem of low utilization rate of counterclaim systerm in judicial practice. All of these affect the function of counterclaim system, which is to protect legal rights and interests of the defendants and conserve judicial resources. This paper studies on the U.S. compulsory counterclaim to seek its referential significance for new possibilities of China's counterclaim system reform.This paper is divided into five parts.The first part describes the emergence and development of counterclaim system. Counterclaim system originated in Roman law.Italian Post glassatoren school advocated that the counterclaim should be implicated in the relationship between claim and counterclaim, and improved the counterclaim theory in the sixteenth century. Since then, the civil law countries generally established a counterclaim system. Common law countries gradually developed their own counterclaims system. With the increasing number of disputes in contemporary society, more and more courts are bound by the case of increased pressure. Common law countries have adopted their own counterclaim systerm, which is good at conserving judicial resource. So civil law countries have followed to reform their counterclaim system. A new wave of reform of the system is formed.The second part is an overview of the U.S. compulsory counterclaim system.It is a panoramic introduction to compulsory counterclaim by historical analysis method and analyzes the economic role of the proceedings. There are three stages in the development of American law :the common law period, the codification period and the period of the Federal Rules of Civil Procedure. In these times,counterclaim systerm is stablished and developed in America. The United States Federal Code of Civil Procedure divide counter-claim into permissive counterclaim and compulsory counterclaim. compulsory counterclaim must be from with the same transaction or event as the claim. However, this standard is often adopted in a more broad criteria by the judge, in order to expand the scope of compulsory counterclaim and maximize the functionality of the system, which is to achieve economic litigation.The third part analyzes the base of invalidity- good faith doctrine and res judicata expansion, the value, legislative purpose and the impact of the Court authority of compulsory counterclaim systerm. Compared with the traditional counterclaim systerm, compulsory counterclaim`s legislative intent is to protect the defendant`s right and realize the duality of economic action. Compulsory counterclaim the court's power is strengthen the system, to urge the defendant to actively exercise their rights and achieve economic litigation.The fourth part analysizes the existing counterclaim in China. This part adopts the method of historical analysis to review the history of the development of China's counterclaim system and analyze the problems of China's counterclaim System: theory lags behind, legislative missing, judges`s arbitrary. Unscientific work performance measurement approach leads the trial judge in a reluctance to apply counterclaim system.Part five is a description of how to build compulsory counterclaim in China.There are so many differences in legal background and litigation patterns between China and America.But they are facing with the same problem which is enormous pressure from lawsuits,and compulsory counterclaim can ease such pressure.The level of judges in China is lower than that in the United States and there are lack of legal enforcement agency system in China. But we can solve all the problems by specific design of the systerm.