For Building The System Of China's Civil Action Counterclaim

The inchoation of the system of counterclaim can be traced back in Roman Law, and after a long period of evolution, it has become an important system of modern civil procedure. In this dissertation, after the analysis of the current situation of the application of system of counterclaim in China—the scatterance or absence of related legislations, the confusion and repulsion in judicial practices, the argument that the system of counterclaim has not really been eradicated in Chinese civil procedure system is brought forward, and in the aspects of lawmaking and administration of law, the reflections on the reasons of the current situation are given, then the thesis of the construction of the system of counterclaim within Chinese civil procedure system is educed. With the Chinese socialist market economy developing continuously, and the concept of modern civil procedure tallied with objective laws evolved and recognized, the voice for amending current Chinese Civil Procedure Law is becoming more and more loud, which brings the chance of constructing the system of counterclaim in China. With both the fundamental theories and practical systems of Chinese civil procedure evolving continuously, the absence of the system of counterclaim in China results in the pressure on the construction of this particular system.In this dissertation, the author starts with the fundamental theories of the system of counterclaim. The concept of the system of counterclaim and its evolution in history is discussed, and then the nature of counterclaim is analyzed, which illuminates the procedural equity and beneficial values within the system of counterclaim. Furthermore, the suggestion on how to construct a system of counterclaim that adapts to China's reality is given.In terms of lawmaking, the legislative ideas should be in conformity with the theories of modern civil procedure, and foreign experience can be use for reference in lawmaking, but China's reality must be taken into account. The "same party principle" shall be the principle of the lawmaking of this particular system. The litigant status of the parties in the action should be respected. To achieve the integrity and simplicity of the legislation, whilst the procedural values of the system of counterclaim should be emphasized, the prolixity in the system and the delay in the procedure should be avoided. Because the system of counterclaim belongs to litigation system, the related legislative bodies are National People's Congress and its standing committee, and it is appropriate not to use judicial interpretations to establish the system of counterclaim. Since the Code of Civil Procedure Law will be not legislated in the near future, the form of legislation on the system of counterclaim in China should be Amendment to the current Civil Procedure Law, which can be the foundation of the future combination of this system into the Code of Civil Procedure Law.In terms of system design, to fully exert the values of counterclaim system should be principle, thus, the applicable scope of the parties who can file a counterclaim should be widen, and time to file a counterclaim should be limited to the evidence-produce period (discovery period) of the original action. As to the counterclaim that is filed during the proceeding of second instance, it is only allowed when the consent of the other litigant(s) is secured. The preconditions for filing a counterclaim should be defined and should not be too strict, and the standards for the implication or relevancy between the counterclaim and the original action should beclarified. Compulsory counterclaim should not be introduced into Chinese counterclaim system due to its unconformity with China's reality.In terms of judicature, the author of the dissertation designs the whole workflow for the counterclaim system that can be applied in the judicial practice, including the procedural scrutiny of counterclaims, hearing and judgment, appeal, and the mechanism for counterclaims filed during the proceeding of second instance. And in this dissertation, the author also give the related suggestions on the reform of standards for trial assessment in the People's Court system and the intensification of the expository liability on judges.In terms of theory construction, the author argues to apply the theories into judicial practice, and to use judicial statistics in the research of counterclaim system. The research of counterclaim system theory and related monograph in this subject can be of great help for the construction of Chinese counterclaim system. And the method of comparative jurisprudence can help to construct the essential theories on Chinese counterclaim system.To sum up, under the guidance of the concept of modern civil procedure, after the substantial construction in the aspects of lawmaking, judicature and theory, the system of counterclaim surely will become a civil procedure system that tallied with China's reality.