Reconstruction Of Counterclaim System In China

The functional value of counterclaim lies in guaranteeing the fairness of the litigation,promoting the litigation economy and avoiding conflicting judgments.It is an important legal system generally established in the civil procedure laws of various countries around the world.However,the existing laws of our country are too principled and conservative to meet the demands of increasingly complex social and economic life.At the same time,it contradicts the development trend of the expansion of global counterclaim right.This directly led to the low application rate of counterclaim in China’s judicial practice,and the development of the counterclaim system stagnated.The purpose of this article is to explore the rationale for expanding the right of counterclaim by studying the basic theory of counterclaims,judicial practice needs and extraterritorial legislative experience,and to propose countermeasures to improve our counterclaim system.In addition to the introduction and conclusion,the text is divided into four chapters.The first chapter is the basic theory of counterclaim system.This chapter introduces the theory of counterclaims,which is the basis for the merger of counterclaims.It is clear that the merger of counterclaims is a merger of independent suits,and it is a combination of suits.On the basis of combing the definition of counterclaims in foreign countries and different domestic doctrines,this chapter clarifies the concept,nature and characteristics of counterclaims.The two essential attributes of counterclaims are emphasized.Firstly,the counterclaim is dependent on this lawsuit,and the premise is based on the existence of this lawsuit.Secondly,the counterclaim is independent,meets the constituent elements of the lawsuit,and has the nature of a lawsuit.This chapter demonstrates the functional value of counterclaims from the perspectives of ensuring the fairness of litigation,promoting the economics of litigation and avoiding conflicting judgments.The intention is to show that counterclaims can not only maximize the utilization of judicial resources,but also the due requirement of equal protection of the parties’ litigation rights and guaranteeing the uniformity of law application.In addition,this chapter also distinguishes counterclaims and related concepts to avoid the use of counterclaims,denials,defenses and litigation offsets in theoretical research and judicial practice.The second chapter analyzes the status quo and causes of China’s counterclaim system.The status quo of counterclaim system is divided into legislative status and judicial status.Through a review of the history and legislative overview of the counterclaim system,this chapter finds that the counterclaim system in China presents the following characteristics.Firstly,the legal provisions are too principled and simple.Secondly,there is a lack of provisions specifically for counterclaims.Mostly,counterclaims are incidentally put together with other regulations.Thirdly,legislators have an absolute negative and conservative attitude to counterclaims and strictly limit the initiation of counterclaims.At the same time,this chapter summarizes the plight and countermeasures of counterclaims in judicial practice with the help of Chinese referee documents.The main reasons for the low application rate of counterclaims in practice are as follows.The scope of the counterclaim party is narrow,and it is explicitly excluded that outsiders in this case become parties to the counterclaim.The legal facts or legal relationship restricting the counterclaim elements of the counterclaim to the two suits must be the same.Based on the unreasonable judicial policy,the court has resistance to the counterclaim,neglecting to fulfill its obligation to explain,and arbitrarily decides whether to accept or merge the counterclaim.The third chapter is a comparative law study on the counterclaim systems of the two major legal systems.This chapter takes the scope of the counterclaim parties,the determination of the relationship between the counterclaim and this lawsuit,the applicable conditions of the counterclaim in the second instance,the re-counterclaim and the mandatory counterclaim as the starting points.The similarities and differences of counterclaims in the big law system are summarized.The common law system advocates the active expansion of the counterclaim system,with fewer restrictions on counterclaims.The civil law system was relatively cautious about the expansion of counterclaims,and earlier set more restrictive regulations on counterclaims.However,in recent years,based on the needs of practical trials,this relatively negative view of counterclaim has been eased.Various countries have successively promoted reform measures and expanded counterclaims to varying degrees.For example,re-counter-claims and inter-confirmation counter-claims are allowed,the parties to the counter-claims are allowed to expand to a third party,and the restrictions on counter-involvement requirements are relaxed.But compared to the common law system,this expansion is quite limited.The fourth chapter is concrete suggestions to improve China’s counterclaim system.Combined with the basic national conditions of our country at present,this chapter puts forward some suggestions for the re-construction of the counter-claim system from the legislative and judicial levels.On the one hand,we should comply with the development trend of global counterclaim expansion and appropriately expand the scope of application of counterclaims.This includes allowing counterclaims between parties in a narrow sense,allowing third parties with independent claims and necessary co-litigants to become parties to a counterclaim.Taking the counterclaim and this lawsuit as de facto,legal and attack defense methods as the judgment criteria,a combination of generalization and enumeration is adopted to legislate to regulate the implication of counterclaims.The proviso clause in the second-party counterclaim was added to allow the defendant to file a counterclaim under legal circumstances.Respond to the issue of re-counterclaim in legislation and allow the defendant to file a re-counter-claim.On the other hand,attention should also be paid to the negative impact of the self-interest consciousness of courts and judges on counterclaims.Improve judicial countermeasures of counterclaim system in terms of strengthening the right of judges to explain,separating the filing and trial of counterclaim cases,reforming judges’ performance appraisal,etc.,realizing the organic coordination of legislation and justice,and promoting the operation of counterclaim system.