"On The Counterclaim Of The Third Party" In Civil Action

The third person of civil action counterclaim counterclaim system which is different from traditional connotation,the specific means in the original told the defendant in this case,the v.the defendant to use counterclaim system,separate outside of the third person to the plaintiff a counterclaim,to include it in the same procedure of lawsuit,in order to realize one-time solve disputes,improve the efficiency of litigation,avoid conflicts judgment,safeguard judicial authority behavior.The core value of the third party counterclaim system lies in the combination of the third party system of litigation in China and the traditional counterclaim system in China.On the basis of expanding the subjective and objective scope of the traditional counterclaim system,analogous interpretation is applied to the purpose of the counterclaim system so as to solve the problems existing in the third party system of litigation in China.For example,there is a contradiction between the theoretical design of the freedom of the third party to exercise the right of independent claim and the reality of the difficulty of another lawsuit and retrial.The court has abused its power to list local judicial protectionism without an independent third party.Theoretical conflict in which the third party bears civil liability without litigation and the judgment has no independent right of claim;The false idea that the right to appeal should be given priority over the right to counterclaim.The above problems,through the third person of counterclaim system building can to a certain extent,to alleviate,at the same time,through the people v.comb can be found,the basic theories of the third person counterclaim system building is to using the equal status and disposition principles for the implementation of the positive significance,improvement of the system of the third person to revoke the litigant,arranging the pretrial litigation procedure of building have the effect of the internal system reversed transmission.Therefore,the author believes that the establishment of the third party counterclaim system in China's civil litigation has sufficient theoretical significance and practical necessity,and hopes to take it as the intersecting point of the system,form the trend of multitask concurrency,and improve the establishment of the relevant supporting system of our national litigation.The text of this paper is about 40,000 words,divided into five parts.The first part is the proposition of the problem,mainly discusses the shortcomings of the third party litigation system and the imbalance of the status of the original defendant in China's civil litigation.It mainly includes the third party system of litigation.Firstly,the asymmetry of the exercise of the third party with independent claim and the right to sue of the accused means that the exercise of the right to sue of the third party with independent claim has great freedom,and the accused can choose to bring a lawsuit to participate in the original lawsuit of the plaintiff or to prosecute separately,while the corresponding defendant can only respond negatively and can not bring it into the trial of the present lawsuit by means of litigation.and at the same time,Because of the low tolerance of contradictory judgments in our country,it is more difficult for the third party with independent claim to appeal separately and apply for retrial,and the existing system of withdrawal of the third party also implies the connotation of forcing the third party with independent claim to initiate the initiative to participate in the proceedings,which is contradictory to the definition of the third party with independent claim.Second,there is no independent right of claim in the third person,the court in accordance with the authority abuses column without independent right to a third party claim caused local judicial protectionism prevails,at the same time no and declared its civil liability,civil lawsuit against the basic legal theory,is not conducive to carry out punishment principle,is unfavorable to further promote the reform of the socialist litigation system in our country.Therefore,the author believes that it is necessary to amend the third party system of litigation in China,so as to coordinate it with other litigation systems in China and provide assistance for the current judicial reform in China.The second part is a comparative study of the third party counterclaim system.The author compares and analyzes the introduction of the third party system by the defendant in the United States and the notification procedure in the lawsuit,the mandatory participation system in the lawsuit in France,the independent third party counterclaim system in Germany,the common third party counterclaim system in Taiwan and relevant theoretical studies.On the basis of normative comparative analysis,it lays a good foundation for the construction of the third party counterclaim system in China.The third part is the history of the system of litigation in our country the third party and the building plan,in the horizontal comparison method at home and abroad on the basis of normative analysis and combined with our country's history research in our country,compared longitudinal local analysis,to analyzes the advantages and disadvantages of various historical scheme,the good and discard the dregs,combined with the context of local law in China,analyzing the relation between the system function and theoretical differences,draw lessons from to absorb.The fourth part is the theoretical and legal basis and necessity analysis of the third party counterclaim system.The development of counterclaim system theory in China has been sufficiently sorted out.Based on historical explanation and systematic explanation,the purpose of traditional counterclaim system has been analyzed to lay a theoretical foundation for analogizing the application of counterclaim system.At the same time,it analyzes the new development of the counterclaim system in China,sorts out and defines the expansion of its subjective and objective scope,and provides practical support for the construction of the third party counterclaim system.Finally,the necessity of the third party counterclaim system construction is analyzed to make it not only legal admissibility and legitimacy,but also realistic operability and practicality.The fifth part is the specific procedure construction of the third party counterclaim system.On the basis of demonstrating the legitimacy of the construction of the third party counterclaim system,the basic ideas and schemes for the construction of the third party counterclaim system are firstly established,that is,the classification of the third party by Chinese traditional civil litigation is guaranteed to the maximum extent,and then the type of the third party without independent claim right is divided.At the same time,the traditional counterclaim system is interpreted by analogy to include the third party in the trial of the lawsuit,so as to solve the litigation status and procedural guarantee of the third party.Then respectively from the third person subjective and objective factors of the counterclaim system were analyzed,and the subjective conditions include counterclaim,who have the qualification of a third person and the third person of the counterclaim object,objective conditions including essentially on the objective conditions and procedures of objective conditions,in the objective conditions of counterclaim mainly the v and a third person involved in definition,procedural objective conditions mainly include the third person of the counterclaim filed conditions,procedures,time,etc;Finally,the third party counterclaim trial and judgment,including whether to combine the trial and the scope of the res judicata constraints.