The Expansion Of The Parties Of Counterclaim

Counterclaim is one of the manifestations of civil litigation,it is also a specific system of civil procedure.Because of China’s Civil Procedure Law on the counterclaim rough provisions,and it have no clear definition of the counterclaim plaintiff and defendant.The mainstream views of academic circle deem that claim and counterclaim parties must be the same.The plaintiff of the counterclaim is the claim defendant,the defendant of the counterclaim is the only claim plaintiff,and the parties of the counterclaim will be strictly limited to the scope of Party v.In 2015 the new civil procedure law judicial interpretation clearly stipulates the counterclaim subject and objective elements,although it makes up the deficiency of Chinese counterclaim legislation,China’s civil counterclaim legislation still insist on a conservative restrictive stance of counterclaim,the parties of The counterclaim are limited within the scope of the appeal parties.The traditional theory and the legislation of counterclaim strict limit the scope of the parties,it restricts the function of counterclaim,and it is difficult to meet the practical needs of resolving disputes.With regard to the establishment of the litigation system,any theory and legislation must be adjusted and appropriately expanded with the needs of the society;the expansion of the scope of the counterclaim parties has become a common trend of the legislation in the world.We should clear the purpose of the counterclaim system and accurately grasp the nature of counterclaim,admit the legitimacy of the expansion of the counterclaim parties.By drawing on the useful experience of Germany and Taiwan region about expansion of counterclaim parties,we can expand the scope of our counterclaim parties;if the plaintiff in the counterclaim filed a necessary joint action,we could expand the counterclaim parties to the necessary joint litigants,and make it fit with the system of necessary joint action.So we can improve and perfect the civil counterclaim system,give full play to the counterclaim system with the function of resolving disputes.In addition to the introduction and conclusion,this paper is divided into four parts as follows:The first part is the analysis of the status quo of our counterclaim parties.First,the thesis introduces the scope of our counterclaim parties from the two aspects of China’s civil litigation legislation and the theory,which will reveal the problem of restrictions on the parties in the counterclaim,and analyzes the reasons from four aspects of the lack of counterclaim legislation,the rigid counterclaim theory,the difficult judicial practice and the absence of the concept of action right.The second part is the necessity of the expansion of counterclaim parties.This part discusses the necessity of the expansion of the counterclaim parties from four aspects: the purpose of the counterclaim system,the nature of counterclaim,Counterclaim and necessary joint litigants and subjective scope of res judicata。The expansion of the counterclaim parties is based on the basic theory of civil litigation as the theoretical support,which provides theoretical basis and practical needs.The third part is the comparative study for the expansion of counterclaim parties.This part first introduces the scope of counterclaim parties in common law system countries of Britain and the United States,and then introduces the scope of counterclaim parties in continental law system,such as Germany,France,and Japan and Taiwan area,which Emphasized to introduce and discuss the legislation jurisprudence and doctrine about the expansion of counterclaim parties in Germany and Taiwan region.Finally,we find that the expansion of counterclaim party scope has become an inevitable trend in the development of the counterclaim system,through a comparative analysis of the scope of the party to the counterclaim in two legal systems,so that we can choose to learn the useful experience about the expansion of the counterclaim parties to promote the perfection of the party system of counterclaim.The fourth part is the concrete conception about the expansion of the counterclaim parties in our system.This part firstly establishes the moderate principle in our current legal environment and system configuration,which must be observed in the expansion of counterclaim parties,which emphasizes the necessary precondition to expand the scope of the counterclaim parties that is to adhere to the implicated relation expansion between the counterclaim and the claim.Then the thesis discusses the specific scope of the expansion of counterclaim parties.We insist that the boundary where the counterclaim parties are expanded to is the necessary joint action.In other words,we can expand the scope of the counterclaim parties to be the identity of the object of action,and no longer confined to the limit of the parties to the lawsuit.According to the requirements of the parties in the necessary joint action,we can confirm the scope of the plaintiff and defendant in the counterclaim.