| Preparatory counterclaim means that in the same litigation procedure,the defendant of this complaint first defends against the plaintiff ’s claim in order to prevent the defense from being supported by the court and simultaneously file a preliminary counterclaim.When the precedent defense is not established,the court is requested to try the counterclaim,Otherwise,the court is not requested to try the counterclaim.As a special type of counterclaim,the preparatory counterclaim is still a counterclaim in nature,and its particularity lies in the conditionality of the request for trial,the preparatory status of the trial,and the order of the request for trial.Therefore,the preparatory counterclaim is an independent complaint and also a conditional complaint.As an important part of the counterclaim system,the preparatory counterclaim also has the functions of counterclaim system to balance litigation rights,promote litigation justice,realize litigation economy,and avoid conflicting judgments.Academia both at home and abroad generally agree with the establishment of a pre-counterclaim system,but countries and regions have varying degrees of research.In general,Germany,Japan,and Taiwan in China have deeper theoretical research and have relevant judicial precedents.However,in China’s theoretical research and judicial practice,the preparation of counterclaims has not attracted enough attention.The author believes that the preparation of counterclaims in China also has a profound legal basis,practical and theoretical significance,and should be paid attention to and strengthened research,so as to deepen the systematic research of the counterclaim system and inject fresh blood into the improvement of the counterclaim system legislation.Apart from the introduction and conclusion,this article is divided into four parts,about37,000 words.The first part is the question.This part mainly analyzes the problems caused by the imperfection of China’s existing counterclaim system.The first is the unbalanced research of special counterclaim theory in China’s academic theory.Most of the researches on compulsory counterclaims and counterclaim parties’ expansion,ignore the preparatory counterclaim,meanwhile,the lack of legislation makes preparatory counterclaims in judicial practice unwarranted.Judicial practice is not well applied to it and it is unable to exert its effect.The second is to analyze the widespread imbalance between the right to sue and the right to counterclaim in civil litigation in China.In a nutshell,it is "heavier prosecution and less counterclaim".This kind of differential treatment results in the defendant’s right to counterclaim not being properly protected.The second part is an analysis of the necessity of establishing preparatory counterclaim system in China.The author believes that in order to solve the problems raised in the first part,China’s academic and practical circles should pay attention to the protection of the right of counterclaim and pay attention to the new type of counterclaims.One of them is to perfect the research on preparatory counterclaims and the legislation should follow closely,and gradually establish a pre-counterclaim system in China.The establishment of a preparatory counterclaim system in China has a profound justification foundation,including the principle of equality in civil litigation and the principle of procedural interest protection;the special functions of preparatory counterclaims that are different from or better than general counterclaims also determine the necessity of granting the defendant the right to prepare counterclaims,Including balancing with the plaintiff ’s pre-merger prosecution right and giving full play to the counterclaim system ’s ability to resolve disputes in one go.The third part is a theoretical analysis of preparatory counterclaim.Preparatory counterclaims are generally recognized in academic circles and judicial practice circles in Germany,Japan,and Taiwan in China,and many scholars have studied what preparatory counterclaims are.On the basis of clarifying the definition of preliminary counterclaims by various scholars,combined with the basic theories of general counterclaims,compulsory counterclaims,objective preliminary mergers,defenses,etc,with a view to making a comprehensive argument on the definition,characteristics and nature of the preliminary counterclaim.The fourth part is the concrete construction of China’s preparatory counterclaim system.On the basis of the above three parts of the argument,the specific procedure design is making for the establishment of the preliminary counterclaim system in China,including the filing and interpretation of the preliminary counterclaim,the standard and acceptance of the preliminary counterclaim litigation fees,the judgement rules for the trial of first and second of the preparatory counterclaims,with a view to providing some reference to the theoretical research and legislative provisions of China’s preparatory counterclaims system. |
