Research On Civil Counterclaim System

The civil counterclaim system is an important system in civil litigation,which has special functions and values and plays an important role in protecting the equal rights of both parties and improving litigation efficiency.The history of the establishment and development of the civil counterclaim system shows that the civil counterclaim system,as a merger system,actually implements the value goal of promoting distributive justice and embodies the civil litigation philosophy of solving disputes as much as possible in a lawsuit.It should be said that there is no longer any situation in which countries and regions in the modern world do not recognize the system of civil counterclaim in civil litigation.Although we cannot sort it out one by one,the trend of development of civil procedure law must be along the path of balancing individual justice and distribution justice,coordinating the protection of individual litigation rights and the rational distribution of judicial resources.The development of China’s civil counterclaim system has a historical process.The1991 "Civil Procedure Law" only simply stipulates the right of anti-suit enjoyed by the defendant in civil proceedings,and does not stipulate the specific conditions,procedures and trial of counterclaim cases for the exercise of the right of anti-suit.The operation of the civil counterclaim system is basically in accordance with the theoretical interpretation of the explanatory law.Unfortunately,the theoretical interpretation of the explanatory law is quite general and abstract,which is difficult to guide the concrete operation of practice.The interpretation of the supreme people’s court on the application of the civil procedure law of the People’s Republic of China in 2015(hereinafter referred to as the interpretation of the civil procedure law)has made more detailed provisions on the constituent elements of the counterclaim system,and the omission in legislation has been made up to a certain extent.however,the civil counterclaim system is still not combined with the civil litigation concept of resolving disputes as much as possible in a procedure and the requirements of distributive justice to the maximum extent,which is obviously reflected in the lack of demarcation between compulsory counterclaim and arbitrary counterclaim.At the sametime,there are many details in the civil counterclaim system,such as the lack of specific provisions in the Interpretation of the Civil Procedure Law regarding the appeal of the ruling rejecting the counterclaim.Therefore,it is necessary to base on the concept of the construction of the civil counterclaim system or the philosophy of civil litigation,focus on the specific operation links of the civil counterclaim system,and carry out a serious study on the current situation of China’s civil counterclaim system and its reform,so as to promote the perfection of the civil counterclaim system,and provide theoretical wisdom for judges to make good use of the counterclaim system and realize the scientific operation or objective operation of the counterclaim system without revising the civil counterclaim system.This article is divided into five parts.The first chapter is the introduction.Mainly from the macro point of view,it introduces why this paper studies this topic,what is the significance,and summarizes the research achievements and research methods adopted in this research.Make a preliminary introduction to the whole research workThe second chapter mainly introduces the relevant theoretical knowledge of the counterclaim system.A thorough understanding of the relevant theoretical knowledge of the counterclaim is the basis for better research and improvement of the civil counterclaim system.Therefore,the first chapter of this article elaborates the relevant theories of counterclaim,such as the concept,nature,purpose and function of counterclaim,and the discrimination between counterclaim and set-off.The third chapter mainly analyzes the current situation and existing problems of China’s counterclaim system,from two aspects of legislation and justice,based on the current situation of China’s civil counterclaim system in-depth analysis of the existing problems of China’s counterclaim system.It can be seen that due to the long-term influence of the rational thinking mode of civil law countries,China holds a strict restrictive attitude towards the design of counterclaims,such as the narrow scope of the parties,and does not divide counterclaims into compulsory counterclaims and arbitrary counterclaims.The fourth chapter mainly explores the civil counterclaim system of foreign countries.This includes both Anglo-American legal system countries that hold expansionist views on counterclaims and continental legal system countries that hold restrictive views oncounterclaims.By exploring the background and operation mode of the establishment of civil counterclaim systems in the United States,Britain,Japan,Germany and other countries,we are looking for advanced experience worth learning from.The fifth chapter mainly elaborates the corresponding measures to perfect our country’s civil counterclaim system.Based on the existing problems in our country and combined with the advanced experience of foreign countries,the corresponding improvement measures are put forward.It mainly introduces the division between the compulsory counterclaim system and the arbitrary counterclaim system in the United States,instead of classifying counterclaim into one type.In addition,it also establishes ways to allow relief by way of appeal after the counterclaim is not accepted,and expands the parties to the counterclaim to a third party.