On The Expansion Of Counterclaim And The Scope Of Res Judicata Of Civil Counterclaim Judgment In China

As a general system of civil procedure in many countries,counterclaim has its significantsystematic values of balancing client’s litigious right,saving lawsuits,avoiding contradictoryjudgments,and so on.However,our current civil counterclaim system is sketchy in legislationand negative in attitude,which is harmful to functions of counterclaim.As the socioeconomicdevelopment,civil legal relationship diversified,traditional modes of dispute solution can notsatisfy the need of solving modern type disputes,hence the need for timely adjustment andexpansion.The expansion of counterclaim has become an inevitable trend of two law systemtoday,so we should learn something that is helpful for us to improve our present counterclaimsystem.Moreover,counterclaim is a special independent action,so its expansion includingsubjective and objective scope would inevitably cause corresponding expansion of the scopeof res judicata.As a result,this thesis researches the expansion of counterclaim throughmethods of comparative analysis,logical analysis and documentation, aiming at perfecting ourpresent counterclaim system and discussing its effect on the scope of res judicata at the sametime.Besides preface and conclusion,the thesis consists of four parts as follows:The first part is basic theories of the expansion of counterclaim.This part expounds threecategories:connotation and nature of counterclaim,definition and necessity of the expansion ofcounterclaim.Through neatening concepts and defining extension,clears specific content ofthe expansion of counterclaim;By analyzing importance of the expansion of counterclaimemphatically,argues its reference value to perfecting counterclaim system in China.The second part is the review of comparative law on the expansion of counterclaim.Thispart arranges traditional positive view of counterclaim in the common law,and brieflydistinguishes impleader and cross-claim at first;Then introduces the easement of negativeview of counterclaim in the civil law.In particular,the civil law has lifted the limits oncounterclaim gradually with the development of society;Finally,through comparativeanalysis,comes to the conclusion that the expansion of counterclaim has become an inevitabletrend,which provides a basis of learning theory and improving counterclaim system for us.The third part is civil counterclaim and the scope of res judicata of its judgment underpresent system in China.First,this part concludes our current situation and problems of civil counterclaim system and analyzes the reason from aspects of legislation,theoretics andjustice;Then elaborates restraint of civil counterclaim’s faults on the scope of res judicata ofcounterclaim judgment.After analyzing its premise,embodiments and way out,proposes tobroaden our thinking and get rid of the situation that the scope of res judicata of counterclaimjudgment is restricted to deal with the complex legal relationship in terms of the expansion ofcounterclaim.The fourth part is the enlightenment of the expansion of counterclaim in improving oursystem,meanwhile discussing its influence on the scope of res judicata of civil counterclaimjudgment.Firstly,establishes mandatory principles namely moderation and respecting client’sprocedure selection right;Then as the application of the expansion of counterclaim,drafts fourspecific measures,that is the expansion of subjective scope of counterclaim,the expansion ofobjective scope of counterclaim,counterclaim in the procedure of second instance andre-counterclaim;Then aims mostly at the expansion of subjective and objective scope ofcounterclaim,discussing separately their influences on subjective and objective scope ofcounterclaim judgment;At length,puts forward safeguards for the application of the expansionof counterclaim:clearing the judge’s clarifying duty and restricting client’s behavior ofcounterclaim abuse.