Reformation And Perfect About The Counterclaim System Of Our Country

The counterclaim system is important about civil lawsuit , having extremely rich law value, the counterclaim character lies in relative independent that depending on the claim. The counterclaim keep a foothold and promote having sufficient rationality, therefore the times has already had the counterclaim regulation from Rome. The rationality shows that the countercharge and lawsuit basic theory have inherent logic connection firstly, counterclaim has law value such as notable legal action justice and legal action beneficial result secondly. the counterclaim is more costful in the background of circulation relation developing , the legal sense intensing , legal action resource shortening. So,it has been prescribed by modern legal states in legislations of civil procedure.Our country is significant deficiency in the field of counterclaim theory research and legislation , the judicial organ is unable to do as well as one would wish facing gradually growing legal action , One aspect, the inclination artificially very grave. Another aspect, it is the outstanding difficult problem that legal action cost rising and the limitation of legal proceedings deferring in trying practice. But, the counterclaim does not play that have unique value, have effection to resolve these difficult problems.Counterclaim system has long history, coming from continent genealogy of law , since, the law of continent genealogy have a rigorous trial about counterclaim on Civil Procedure Law of Germany and France. UK-US genealogy of law attaches importance to litigation rights equality and legal action economy, the condition to the counterclaim is comparatively loose. Nevertheless, two fundamental can deliver the system space .Nowdays, the civil law countries rethink profoundly and reform about the rigorous counterclaim, the result of reforming makes the counterclaim structural loose, which is significance to our system.Firstly, starting off from fundamental theory, drawing lessons from western countries'spirit of the development advancing with time, our system of counterclaim needs to be protected strictly in such aspects: expanding the counterclaim interested party, ensuring legal action proceeding as planned and without a hitch sum legitimate rights and interests of litigants in progress sufficiently; relaxing the relation between capital appealing and implicate to bringing counterclaim system into play sufficiently; making time and way by which the counterclaim mentioned clear and administering a court, giving the counterclaim not accepted sufficient procedure protection; ensuring an interested party trying level sufficiently, on the premise of benefit, straightening out the logical relation between law, giving interested party waiver to the right trying level benefit. Secondly, the gauge of the system is made strictly: setting off from condition beneficial to bring the counterclaim system function into play and according with national conditions, building up compels of counterclaim on the basis of fulfilling bright duty Buddhism in judge; persisting in the principle of encouraging exercising litigation rights just the time for or opposing vexatious action right, the gauge being in progress to evil intention counterclaim makes, requiring that the person bears the civil liability including various forms such as compensating for loss , removing effect , rehabilitation , apologizing.