| The civil counterclaim system originated from the offsetting system of ancient Roman law gradually attracted the attention of all countries in the world with its many advantages.On the issue of how to deal with civil counterclaims,there are two clear-cut attitudes in the two major legal systems.Due to the different attitudes towards civil counterclaims,the two major legal systems have shown great differences in the design of civil counterclaim systems.The long-term development of the civil counterclaim system in the two major legal systems has a strong reference for China in terms of concept,legislation and judicial practice.With the development of society and economy,the people’s pursuit of efficiency and fairness in litigation is more pressing.It is contrary to the traditional theory of civil counterclaims.China has not achieved effective innovation in the system of civil counterclaims.The current civil counterclaim system cannot effectively respond to new problems arising in judicial practice.It urgently needs to improve the existing counterclaim system.However,the current situation has not aroused legislators’ due attention to the system.The main manifestation is: the latest civil procedure law.The amendments did not involve the system,and until 2015,the "Interpretation on the Application of the Civil Procedure Law of the People’s Republic of China"(hereinafter referred to as the "Judicial Interpretation")was promulgated,stipulating the basic issues of counterclaim,and establishing a counterclaim system.The basic framework,but the "Judicial Interpretation" lacks in-depth and detailed provisions on the nature,nature,classification,trial rules,and withdrawal of counterclaims.The theoretical circle also lacks an in-depth,comprehensive and systematic study of the civil counterclaim system.As for the old and new issues arising from the civil counterclaim system,the theoretical and judicial circles have not resolved and responded in a timely manner.For example,there is almost no discussion among the academic circles about the issue of the overlap between the prohibition of repeated prosecution in judicial practice and counterclaim;the legislation still adheres to conservatism.The attitude prohibits the counterclaim parties from expanding;and there is no response to the issue of resurrection that is widely concerned with the theoretical and practical circles.The insufficiency of legislation and theory affects the full play of the function of the counterclaim system in expanding dispute resolution and avoiding contradictory judgments.To address these issues,this article focuses on its analysis and gives recommendations for improvement.In addition to the introduction,this article divides it into five chapters to discuss:Chapter One: Is the basic theory of civil counterclaim system.First of all,on the basis of analyzing and comparing many connotations about counterclaims,the connotation of counterclaims has been defined.Based on this,the relevant concepts of counterclaim are analyzed,and the conditions for the defendant to file a counterclaim are analyzed to better understand and apply the counterclaim system.Secondly,on the basis of an in-depth analysis of the doctrine of the nature of domestic counterclaims and the nature of extra-territorial counterclaims,the nature of counterclaims in China was clarified,and it was pointed out that counterclaims were conditional,special and independent complaints.The value function of counterclaim is proposed,that is,the efficiency of the litigation procedure is improved,the contradiction judgment is avoided,the party’s right to disposition is respected,and the parties’ right to suit is balanced.Finally,based on the different criteria for episodic classification,counterclaims are typed and analyzed,in the hope of providing beneficial ideas for the scientific development and positioning of civil counterclaim systems in China.Chapter Two: Procedural Rules of the Civil Counterclaim System.In this part,the phase of the counterclaim procedure is used as the central axis,the counterclaim is taken as the starting point,and the procedural rules of the counterclaim are discussed as the end of the counterclaim.The time and form of the counterclaim,the requirements for reviewing the counterclaim under the registration system,the rules to be followed in the trial,the matters to be noted in the substantive examination,and the withdrawal of the counterclaim were analyzed in detail.Especially on the time of filing a counterclaim,on the basis of lessons learned from extraterritorial experience,combined with legislation and judicial practice,it was pointed out that the time for counterclaiming in China should be limited to before the end of the defense process.In response to the issue of formalities in the counterclaim,based on comparing the merits and demerits of the two forms of the written form and the verbal form,the form of the country’s counterclaims was determined as follows: the principle of filing in writing was an oral verbal exception.In light of the case registration system,the review of the counterclaim elements,combined with the experience outside the region and in the Taiwan region of China,pointed out that the examination of its requirements should be based on formal examination and supplemented by substantive examination.Under the premise of adhering to the trial rules,the substantive trial of civil counterclaims is the core of civil counterclaims,which determines whether the function of the civil counterclaim system can be successfully realized.The merger debate is also the core of the substantive trials,on the basis of respect for the parties’ consensual rights,Focusing on the priority of the merger debate,the three situations in which the prosecution and the counterclaim must be jointly debated are pointed out.Finally,when the counterclaim is withdrawn from the litigation contract and the action is withdrawn or dismissed,the legal effect of the dismissal is analyzed.Chapter Three: Compulsory Counterclaims in Civil Counterclaim System.The compulsory counterclaim system is a unique system in the Anglo-American law system.This section focuses on the US counter-claims,introduces the legal basis of mandatory counterclaims,and the conditions and exceptions for mandatory counterclaims in legislation and judicial practice.Specifically for the mandatory counterclaim and arbitrary counterclaim determination criteria,based on a comparative analysis of the judgments of the Federal District Court for the South Carolina and the Fourth Federal Circuit of the United States,it is concluded that currently in the United States judicial practice,In addition to this statutory standard of the same transaction,event or legal relationship,the criterion of “the logical relationship between the prosecution and the counterclaim” that confers greater discretion on judges is favored by judges.Compared with the United States,the traditional civil law system places more emphasis on the real discovery of the case and the protection of the entity’s right to dispose of the case.Therefore,there is only an arbitrary counterclaim in the legislation and theories,and there is no mandatory counterclaim.However,there are some special circumstances in the judicial practice.If the defendant does not raise the counterclaim,serious consequences of losing power will result.Based on the purpose of providing sufficient procedural guarantees for the parties,some scholars in China have called for the introduction of a mandatory counterclaim system.After analyzing whether the relevant viewpoints of the system should be fully introduced,the author suggests that China’s limited mandatory system should be formulated in accordance with the theory of counterclaim in our country and the judicial tradition.In the counterclaim system,it is proposed that the part of the overlap between the repeated prosecution prohibition and the counterclaim be included in the limited mandatory counterclaim.After the establishment of a limited mandatory counterclaim,the relevant countermeasures shall be perfected: establish a sound pretrial preparation procedure,strengthen the obligation of the judge to clarify,establish a mechanism for the cooperation of the parties,and clear the channel for redressing the loss of power,so as to provide perfect procedural guarantee for the counterclaim parties and achieve a fair procedure.An organic unity with substantive justice provides institutional guarantees.Chapter Four: The Third Counterclaim of the Civil Counterclaim System.The third counterclaim system can not only greatly promote the realization of the function of the civil counterclaim system,but also improve the existing theory of civil counterclaim.In addition to the Anglo-American law system,more and more civil law countries are third in legislative or judicial practice.The counterclaim system recognizes it.Although China’s current legislation does not recognize the third counterclaim system,in the judicial practice,judicial personnel in China have conducted beneficial explorations.This section takes the case in China’s judicial practice as an entry point,and analyzes the "contradiction" of the third counterclaim against the legislative and judicial practice.Afterwards,it interprets the theoretical dilemma of the third counterclaim and breaks through its theoretical dilemma.Based on this,it thoroughly analyzes the status quo of the legislation and judicial practice of China’s third counterclaim system,and points out that China has the legislative and judicial system to establish a third counterclaim system.Basic practice.Subsequently,a detailed analysis of the legislation and judicial practice of the third counterclaim system in the countries or regions outside the region was conducted.Based on the experience of the third counterclaim laws and judicial practices of the relevant countries and regions,this paper proposes to establish the third counterclaim system in China.It also put forward suggestions for the specific construction of the third counterclaim system,pointing out that China’s combination of third-person theory should introduce third parties who have independent claims rights and outsiders who need to be identified with the subject matter of litigation,etc.,to be introduced into the anti-suit procedure,and thus improve China’s The existing counterclaim theory promotes the realization of the counterclaim function.Chapter Five: The counterclaim of the civil counterclaim system.The issue of counterclaim against counterclaim is a controversial topic in the civil counterclaim system.In response to this issue,this section starts with the difficulties faced by China’s judicial practice.Whether or not a counterclaim system should be established,and then a detailed interpretation of the theoretical basis of the counterclaim system.At the same time,it will introduce in detail the counter-claims response pattern of the counterclaims of the relevant countries and regions.Through the above analysis,this paper proposes that China has the basis for establishing legislation and judicial practice in the establishment of a counterclaim system,because establishing a counterclaim system in China is an effective way for the realization of the civil counterclaim system,a basic requirement for the intrinsic property of the civil counterclaim system,and consistent with counterclaim theory.The development trend of justice.Finally,combining our country’s civil counterclaim legislation and judicial practice,we put forward reasonable suggestions for the construction of China’s further counterclaim system: in terms of further counterclaiming the parties,allowing the parties to further counterclaim to expand;in terms of further counterclaim implicative aspects,the implementation of stricter counterclaims should be implemented more strictly.Implicit standards;the issue of whether a counterclaim can be filed for a counterclaim should be allowed. |
