Civil Counterclaim System

Counterclaim system has its usefulness in practice and profound procedural meaning in theory as well. At first, concept of value contained in counterclaim system failed to attract people's attention, but then with the development of procedural practice and procedural theory, people gradually realize the value of fairness and effectiveness contained in the system. Nowadays, Countries of common-law system and civil-law system make more detailed regulations concerning counterclaim both in legislation and procedure. But in our country, in terms of both the theoretical study and legislation with regard to the counterclaim, there are still many defects, which cannot meet the needs of the practice of procedural practice. Counterclaim system established in main countries of the two families of law provides us with useful and reasonable references. Therefore, for the purpose of adapting to the development of the modern litigation procedure, we must make appropriate expansion of the value of counterclaim system on the basis of balance of litigious right to establish a systematic, fully functional and operative system of counterclaim.This paper is divided into four parts. Part One. The first part is about the general theory of counterclaim system. Firstly, it makes an introduction of the history and development of the counterclaim system. Secondly, it conducts a discussion of the various theories of counterclaim, on the basis of which, it tries to give a more scientific definition of the concept from the points of view of the nature and features of the counterclaim. Finally, it gives an analysis of the values and functions of the modern system of counterclaim that is the fairness and efficiency of litigation procedure. Part Two. The second part gives the comparison of counterclaim system in the two families of law. Through the comparison of the legislation and major theories of counterclaim in the two families of law, this part concludes that in the common-law system the counterclaim has the character of negative contracting and in the civil-law system, positive expanding. The treatise probes the causes of these characters. The third part carries out respectively a reflection of the current system of counterclaim of our country and some analysis of the reasons of the obstacles with relation to the application of counterclaim, i.e. the imbalance between the litigious rights of the two parties and the imbalance between the litigious right and judicial power of the court. Last Part. Perfection of the concrete system of Chinese counterclaim system. This part from the angles of fundamental position of legalization and reformation of the specific systems raises some proposals of the re-establishment of the system of counterclaim. The article points out that the legislation of Chinese counterclaim system should be perfected from follow aspect, such as, the procedural factor of counterclaim, the substantive factor of counterclaim and so on.