On The Implication Between The Principal Claim And The Counterclaim

On the basis of actual cases, this thesis addresses the issue of handling implicative relations in the identification of counterclaims in judicial practice. Given that no legislation in China specifies whether a counterclaim must bear any implicative relation with the principal claim, it is therefore impossible to determined on the basis of existing legislative provisions whether implication should be adopted as a qualification requirement for a counterclaim. In theory, the definition of counterclaims and the substance of implication have always been controversial, with great variations in the standards used to determining and identifying implication, which has given to rise to a variety of ways to handle counterclaims in practice. In addition, although there are no legislative provisions on offset pleas, offset pleas, as acts of litigation, do exist in judicial practice. The similarities between offset pleas and counterclaims have resulted in confusion of the two different notions in terms of application. Given that implication is the most elusive factor in counterclaims, therefore, the relation between implication and counterclaims must be properly clarified and the identification standards of implication are further defined before the application of counterclaims may become standardized. Therefore, this thesis focuses on and discusses in detail whether implication should be taken as one of the qualification requirements of a counterclaim, whether it is necessary to identify such implication, and the specification of the identification standards of implication, and on the basis of overseas legislations and theories on implication relations between principal claim and counterclaim; furthermore drawing on the mature theories and feasible judicial experiences of overseas countries（regions）, it proposes identification standards for implication in China, with a view to extending the application scope of counterclaims and ultimately unifying the existing rules for the application of counterclaims in judicial practice.This thesis includes four parts plus the introduction and conclusion of the thesis.Part 1 of the thesis lists a number of cases and through the cases, introduces the issue of the passive application of counterclaim in practice due to problems with implication. The litigants and the judge, owing to their difference in perspective, may have different opinions regarding implication between the principal claim and the counterclaim. And in light of the current confusion in terms of the application of the notion of implication, this thesis probes into the underpinning factors from the perspectives of legislation, theory and judicial practice.In Part 2, the theories of typical countries（regions） under the civil law system and common law system in connection with the notion of implication between the principal claim and the counterclaim are introduced, especially whether such a notion as implication exists, whether the notion is broad or narrow, the actual application of the notion and the development trend thereof. Through introducing the well-developed theories and feasible experiences of overseas countries（regions） in connection with implication, this chapter aims at providing references for China on whether the notion of implication is necessary and what standards should be used to identify implication.In Part 3 are suggestions on improving the Chinese identification standards for the implications between principal claims and counterclaims. The necessity of the notion of implication as a qualification requirement of a counterclaim is confirmed in this part from the perspective of its foundation and the control of the objective scope of the notion. After an analysis of the qualification requirements of implication from two perspectives, namely, restrictive and extensive, this author argues that it would be appropriate to expand the restrictive approach to a proper extent, i.e., on the basis of traditional theories on implication, expand the notion of implication as it is into other legal relations that are implicative in nature. Furthermore, on the basis of the current civil procedural theories of China, the purposes served by counterclaims and other factors, this author defines implication of counterclaim through five parameters.In Part 4 of the present thesis, suggestions are put forward in connection with the improvement of the supporting systems and institutions for counterclaims in China. In order to give better play to the role of counterclaims system of China, it is necessary to optimize relevant supporting institutions and systems, especially those in connection with the application of offset pleas, the scope of individuals and entities entitled to make counterclaims and the initiation of counterclaims during the second-instance trials.