Study On The Construction Of Civil Counterclaim System Of Second Instance

The current counterclaim system in our country not only summarizes and omits the provisions of the legislation,but also maintains a closed and conservative attitude in the study and application of counterclaims.Judging from the application of counterclaim system in civil procedure at present in our country,whether it is civil appeal theory or judicial practice,the counterclaim of the defendant's claim against the plaintiff in the first instance procedure has become the norm in judicial practice.However,when the defendant in the first trial did not file a counterclaim in the first instance,how should the court deal with the fact that the defendant in the original trial could directly file a counterclaim in the appeal trial? From the provisions of the current Civil Procedure Law and related judicial interpretations,The legislation does not give this question a satisfactory answer in full compliance with the law applicable to the development of Civil Procedure Law and the counterclaim system.Based on the reinterpretation of the procedural law of the counterclaim system and the comparative application of the counterclaim system in civil law countries and regions,Hope our country consummates the theory of counterclaim system,on the basis of perfecting the construction of litigation procedure to initiate the counterclaim for the second trial procedure.In addition to the introduction and conclusion,this article is divided into four parts as follows:The first part is the theoretical summary of the civil second instance counterclaim system.Because the counterclaim of civil procedure of second instance is based on the counterclaim system,this part starts with the counterclaim system and analyzes the function of the counterclaim's litigation law.It clarifies that the counterclaim system expounds the protection of the right of action in the equal protection of rights,avoidance of conflict referees and improvement of litigation efficiency The positive meaning.Secondly,from the perspective of the purpose of dispute resolution in civil litigation and the disposition of parties,the legitimacy of the introduction of counterclaim system in civil second instance proceedings is analyzed.The second part is about the status quo of legislation of civil second instancecounterclaim system and its appraisal.This section first describes the relevant state of the counterclaims for civil second instance.Although China's Civil Procedure Law stipulates the counterclaim system from the beginning of the legislation,how to apply the counterclaim in the second instance is still in the blank of legislation.The second-instance counterclaim can only be found in the judicial interpretation of the Supreme People's Court.Secondly,the author analyzes the existing problems in the second instance civil counterclaim system in our country.It mainly analyzes the Supreme People's Court's provisions on counterclaims of the second instance and points out that it failed to balance the interests of litigants and abuse the mediation system.The third part is the comparative law of the second instance civil counterclaim.This part first elaborates the basic theory of counterclaim system in Germany,Japan,South Korea and Taiwan of our country and the counterclaim legislation in the second instance.Then,it analyzes the counterclaim system and the counterclaim system of the second instance of civil law countries and regions.The fourth part is the construction of the procedure of the civil second instance counterclaim system.First described the second instance counterclaims start the program.This includes the procedure of launching the second instance counterclaim system,the starting method,the starting procedure and the blocking of the initiation of the second instance counterclaim procedure.Secondly,it expounds the conditions of admissibility of second instance counterclaims.Finally,the scope of the trial after the counterclaim of second instance and the method of trial are expounded.