Counterclaim The Loss Of The Right System

Counterclaim is an important institution in civil action, containing the extremely rich legal value. Counterclaim is divided into compulsory counterclaim and permissive counterclaim overseas. Compulsory counterclaim refers to the counterclaim which the defendant must propose, if he do not, he will lose the counterclaim right and also not propose another action later. One of its tenable conditions is that the counterclaim request and the action request origin from the identical legal relationship or the identical fact. So, this article proposes the concept of counterclaim invalidity that the defendant must mention the counterclaim from the identical legal relationship or the identical fact with the action in the same process; he will lose the right to propose this request in the later lawsuit if he does not propose this counterclaim. Consulting the overseas law, we should divide counterclaim into compulsory counterclaim and permissive counterclaim and establish the counterclaim invalidity institution, in order to exert the function of the counterclaim institution.The counterclaim invalidity institution has its unique value. It mainly manifests the following several aspects. First, it can save the lawsuit cost, enhance the lawsuit efficiency, and realize the time efficiency of lawsuit. Second, with the effect of losing right, it causes two or many sues to merge to try, avoiding the contradictory judge and maintaining the judicial authority and the legal system unity. Third, the counterclaim invalidity institution can guard the honest-credit principle in the lawsuit—if the defendant neglects to exert the counterclaim right, it causes invalidity consequence, in order to protect plaintiffs faith benefit.Looked from the civil action goal, the counterclaim invalidity institution conforms to the civil action institution's goal. The dispute-solves theory thinks that the goal of the civil action is the compulsory solution of dispute, and the effect of the counterclaim invalidity institution is to be helpful to realize disposable solution of correlation dispute. Moreover, the effect of the counterclaim invalidity institution urges the litigant to exercise the suit right reasonably. At the same time, compulsory counterclaim strengthens the judicature's protection function to the counterclaim right.With analyzing above several aspects, this article believes that constructing the...