Counterclaim System Research

As an important procedural system in modern civil litigation, the system of counterclaim contains the basal values of equity, efficiency and benefit in civil litigation. It also can be used to protect the party's rights, prevent two judgments from being inconsistent and save the cost of litigation. But in our country, because there has no unanimous view about it in many theoretical aspects in the research circle and the legislation about the system of counterclaim is too simple and separate, which affect the application of counterclaim in practice, induce that the function of counterclaim is impeded and can't operate very well. So it is necessary to perfect the system of counterclaim. This paper aims at the realistic status, analyses the reasons and gives the suggestion on how to improve the system, on the basis of comparing with the system of counterclaim in other countries.This paper contains four parts:The first part starts with the theory of counterclaim, on the basis of which, it gives a more scientific definition on the concept, features and nature of the counterclaim. The counterclaim is in the civil procedure which was began, the defendant of claim and the third party files an independent claim to the plaintiff of the claim and the third party through court. The counterclaim's features are: the counterclaim has attack, counterpunch, the counterclaim's time is different from claim and the counterclaim depends on claim for existence. The nature of counterclaim is that it is a kind of "special and independent litigation" .In the one hand, the counterclaim is independent,; in the other hand, the independence of counterclaim is relative and the counterclaim depends on claim for existence. Then the author conducts a review of the history in order to seek the historical foundation on how to perfect this system. With the development of the theory of civil litigation, the counterclaim was developed too.The second part introduces the system of counterclaim in the Continental Law System and in the Anglo-American Law System and analyses the same and the difference among them, for example, the party of counterclaim, the conjunction between the counterclaim and claim, the time of filing counterclaim and the court's domination, hoping to find proper theories and rules suitable to our country.The third part analyses the application of the current system of counterclaim in our country. The representations of legal aspects are: the legislative regulation is too simple and separate, the domination of counterclaim, the party of counterclaim, the time and terms of filing counterclaim and accepting and hearing the counterclaim and trial are too abstract, lacking maneuverability. In the judicial practice, it represents that it is difficult to accept and hear the counterclaim and after accepting there is no regulations to follow. On the basis of that actuality, the author analyses the reasons of the obstacle with relation to the application: they are lacking of legislation, the plain understanding about the function, the bad effect of litigation mode of "exceed authority" and the arbitrariness of counterclaim.The fourth part is the key part of this paper. Firstly, the author suggests the principles which should be obeyed in the process of perfecting the system. They include respecting the parties' option on the procedure, the principle of equality and the procedure benefits. Secondly, bring forward four pieces of suggestions on perfecting the system of counterclaim from the scope of legislation: One is extending the scope of the parties of the counterclaim, the author claims that confirming the party of counterclaim should be according to the fact of case. One is concluding the inscapes of counterclaim, which contains the counterclaim's legal inscapes, procedure inscapes and essential inscapes. The legal inscapes include that the counterclaim depends on claim for existence, the counterclaim must be filed to the court which hears the claim and the counterclaim should be filed in the time of quote. The procedure inscapes contain that the form of instituting counterclaim, which must be in the written form .On the domination of court, the author deems that as long as it is not dominated by the executive court and it should be extent the essential inscapes, the court which trial the claim has the right of domination too. One is to establish the system of compulsory counterclaim in the view of the compulsory counterclaim from two aspects: One stipulates the composing inscapes, that is the claim and counterclaim come into being by the same legal relationship or legal fact. When the defendant files the counterclaim, his debt must be paid back. The counterclaim is not dominated exclusively. The other courts hasn't trialed the claim. The other is constructing a system of compulsory counterclaim's procedure guarantee and relative system. It invoices that endowing the parties' option of procedure relief, the judge's obligation of explaining, making clear that exchanging the evidences before holding a court. One is that giving the suggestions on the defendant of the counterclaim can charge the plaintiff of the counterclaim in the same proceeding by using of the German legislation. Finally, putting up the regulations about the checkup, cognizance and judgment in the court proceeding from the judicial scope.