Research On The Counterclaim System

Counterclaim system which is widely designed in the relevant legislation of civil procedure in the world has great litigation value in the legislation of civil procedure.The function and value of the counterclaim system are mainly reflected in the protection about the equal right of the plaintiff and the defendant,the improvement of procedural efficiency,the maintenance of judicial authority,and the avoidance of contradictory judgments.In recent years,the extraterritorial legal systems have paid much attention to its development and improvement due to its great value in litigation.Compared to extraterritorial legal systems,the legislation of civil procedure in China do not pay much attention to the counterclaim system,so the development of current counterclaim system in China is not so well,and the application in judicial practice is also really confusing.Under the social background of rapid economic development and increasing civil cases,it is very significant and necessary to explore a more perfect counterclaim system for Chinese national conditions in the current civil trial situation.This essay is divided into four parts to explore and improve the counter claim system in China.In the first part,it starts from the basic concept of counterclaim and summarizes the nature,characteristics,functions and values of counterclaim,and analyzes the theoretical research of counterclaim system.It demonstrates the importance and litigation value of counterclaim system.In the second part,the author makes a proper investigation and comparison of the counterclaim design between the common law system and the civil law system.The civil law system has been conservative to the counterclaim system for a long time,but in recent years,it has been gradually changing to open.The common law system has an open attitude to the counterclaim system,and the relevant supporting system is relatively perfect.Through the investigation and comparison,there will be a suitable system design for our national conditions,so that the counterclaim system in China will be more perfect.In the third part,the author analyzes the current situation and defects and problems of the counterclaim system in our current legislation and justice in the perspective of the general situation of legislation and the application in judicial practice of the counterclaim system in our country.Because the lack of attention to the counterclaim system,there has a great deficiency of counterclaim system in the legislative level for many years.Therefore,the application of counterclaim in judicial practice also presents a chaotic situation.In the fourth part,based on the analysis of the current situation of the counterclaim system in previous parts,the author used extraterritorial counterclaim system for reference to tries to find out the suitable method to solve the problems in China.For the perspective of legislative,the author seeks for a reasonable way toimprove from the three aspects of the elements of counterclaim,the counterclaim trial procedure,and the relevant issues in the second instance.For the perspective of judicial practice,the author explores the ways to improve from the three aspects of the court management mechanism,the judge’s judicial concept and the judge’s interpretation obligation.Through the exploration of legislation and judicature,the author tries to find the way to improve the counterclaim system in order to make it get better development and realize its value in litigation legislation and judicature.