Chinese Civil Counterclaim System

The offset system first appeared in the Rome law,ancient Rome jurists have systematic research on the offset system at the beginning of the establishment of the settlement of the case to provide a relatively simple way,the counterclaim system is established on the basis of offset system,modern counterclaim system plays a decisive role in resolving disputes with.Two legal view of counterclaim is decided by different countries in different settings on the counterclaim system,continental law insists on the absolute limit to reflect the view of counterclaim,counterclaim is to strictly limit the scope of the parties,the counterclaim system restricts application of offset,the Anglo American view of counterclaim is loose,the main purpose is to maximize a short period of time to settle the disputes,so the counterclaim range can be extended up to third people,is not binding and offset the economic disputes and property interests.China is a typical continental law system,the counterclaim system set the guiding idea is restricted view of counterclaim,so all the previous reform of counterclaim system in the applicable conditions and elements of efforts,ignoring the national conditions of our country and the status of justice,the fundamental reason of lower quality which is China's use of counterclaim system.From the analysis of theory,an in-depth study on the counterclaim in China,many scholars have put forward the idea of comparative breakthrough in basic research of foreign counterclaim system,first introduced the counterclaim system in our country is the Anglo American system of counterclaim,then gradually reforms to the legal system of continental law system,which makes the contradiction between idea and system setting the counterclaim system is chaotic,it is self-evident.The role of the judicial field gradually realize the counterclaim system in solving a number of disputes from the judicial practice,especially after the explanation on the counterclaim system in civil litigation in 2015 "opinions",the counterclaim systemrate is increasing,this is a good thing,we want to see on the other hand,the counterclaim system in application in the process of problem,for example,whether the judge discretion applies on the counterclaim system restrictions,third people to become parties to the appeal,the second instance of counterclaim and counterclaim interests of the rights and interests of the litigants,the definition of relevance balance doctrine etc..These problems seriously hindered our counterclaim system truly play value.Through a comparative study on the counterclaim system of two legal systems and the typical countries and regions,aiming at the problems of the counterclaim system in theoretical circles,the judiciary appears,puts forward feasible suggestions:the creation of compulsory counterclaim,in recent years the written judgment requires detailed writing the facts of the case,court and judges the dialectical process of freedom the heart is,the res just effect,but also provides an institutional guarantee for the creation of compulsory counterclaim,compulsory counterclaim requires the defendant under certain conditions must be counterclaimed or not made this claim in any subsequent litigation,jurisdiction and procedure can maximize the right balance,to prevent the abuse of litigation rights the addition of the appeal;counterclaim,counterclaim,counterclaim,actually is the opposite of several claims,consolidated to avoid contradictory judgment,objectively.Shorten the trial time,saving the cost of justice;in addition to the above measures should also be changed to three tiered trial level,appropriate to expand the view of counterclaim,counterclaim filed a clear form and under the jurisdiction of the court to consummate the counterclaim system.