An Analysis Of The Counterclaim System In Divorce Litigation

The nature of the divorce litigation is actually an action of formation, but because marriage is more special, including both personal attribute and property attribute, divorce litigation generally has multiple attributes for all those disputes arising from marital relations. The process is often based on requirements of the parties and the relevant laws. When the parties have disputes about divorce reasons, property, child support and other issues, either party has the right to appeal for divorce. When both sides have their own claims on these issues, and the judgement is only based on the plaintiff's claim, according to the principles of punishment, the court referee cannot bypass the plaintiff's appeal. But if the defendant's appealing is ignored by the court referee, it is not conducive to ascertain the facts of the case, resulting in a waste of judicial resources and being not conducive to promptly resolve disputes. However, if the plaintiff sues to adjudicate cases, the direct foreign plaintiff claims the defendant exceeds the scope of the appeal to review and referee, it is inevitably contrary to the plaintiff's appealing right, and to the no claim, no trial principle. Therefore, when the plaintiff sues for divorce, the defendant should be given corresponding counterclaim rights.Current legislation stipulates the conditions under which counterclaim can be carried out. However, because divorce proceedings concern personal and property attributes, whether counterclaim can be applied to the litigation is still in controversy over times. In practice, requests of defendants in litigation procedure are regarded as defense opinions in some courts and the cases are to be trialed and sentenced; or are not being heard in some courts. And if the defendant agree on a divorce, except the proceeding for dissolution of marriage, other lawsuits are req uired for separa te proceedings. To address the issue and unify the criterions for judgment, the defendants should be endowed with the right of counterclaim in a divorce case. Counterclaim applied to divorce litigation have both entity value and process value. Physically, it settles the logical contradiction between the plaintiffs' right of d isposition and the balance of rights and interests of both sides. In terms of process, it e ncourages the defendants to appeal for counterclaim when they have appeals rather than open a new case. Thus it helps to solve the disputes in time, save the judicial resources, improve litigation efficiency and give guidance for the divorce appeal cases and retrial cases.In some countries and regions, counterclaim system is explicitly stipulated in divorce proceedings, giving guidance for handling divorcing proceedings in our country. This paper studies and compares the counterclaim systems in Germ any, Japan, Am erica and Taiwan. Take China's own situation into consideration, this paper analyzes our counterclaim system. Counterclaim to divorce litigation should meet the general requirements. For instance, counterclaim and lawsuit must be applied to the same judicial proceedings. Request of counterclaim must not violate exclusive jurisdiction.Because of the unique features of divorce litigation, counterclaim system in Civ il Procedural Law should not be fully applied here. Counterclaim has its superiority and forced counterclaim has its defects in divorce litigation. The special forced counterclaim, therefore, should be applied to divorce cases in which the defendant agrees on a divorce. Differences exist between divorce litigation and other litigations. If compulsory counterclaim is ap plied indiscriminately, it is unfair to the defendants. If the defendant disagrees on a divorce and does not file other appeals, once the divorce is granted by court, the defendant will not be allowed to file other lawsuits to have his or her voice heard about the divorce, the property or the children support. Thus the defendants' rights and interests will not be protected. This means that the defendants, in case of losing the rights and protecting their interests, must file counterclaim at the same time when the plaintiffs sue for divorces. However, property division and problem of children-rearing will not be finally settled if dissolution of marriage is not granted. Then the defendants must sue for a divorce. If one sues for a divorce, the other is forced to exercise the right to divorce. The system seems to promote a forced divorce, violating the principles of the Marriage Law and social ethics and morality, thus doing harm to our society and the obligees.Based on the analysis of the counterclaim system in divorce litigation, when counterclaim is applied to divorce litigation, the pefection of counterclaim, involving many parts of c ounterclaim, including entity element, procedure qualifications, trial and judgment of counterclaim, res judicata, nolle prosequi, appeal, retrial, should be studied carefully.