Analyzing The Rule Of Counterclaim In China

As the establishment and development of modern China market economy, the social relationship is more and more diversified, and the citizen's legal consciousness is strengthened day by day. An inevitable result is that the percentage of solving disputations through litigation is increasing. Thus the conflict of less people but more cases is gradually obvious, and the number of cases is obviously increasing. The working load and pressure of court and judge is enlarged, in the meanwhile, the efficiency and fairness of law is unavoidably affected. But the sources of judicature can only be stable within a short time, and can't be increased in a short time. Therefore, one of the choices and methods is to consider how to fully use the potential of lawsuit system.Counterclaim means that in a contentious procedure, in order to reject, merger and counterbalance the real action, the defendant of real action lodges a claim which is related with the real action by taking the plaintiff as the defendant. It occurs with the real action and can be called counterattack independence claim.Counterclaim system can be fully used because of its many advantages. For example, the system of solving conflicts by mergering can effectively save the litigant's litigation cost and the court judicial resource, and help avoiding contradictory judgment. However, counterclaim system at present faces objective contradiction between the simplification of legislation and complication of practice. Being a late starter of counterclaim system, our country hasn't given general and systemic regulations. Therefore, the result is that counterclaim system encounters a variety of obstructions and it brings chaos in judicial practice. So it is very hard to embody the real value of counterclaim system. Therefore, how to bring counterclaim system into full play is one of the important problems in our judicial theoretical circles and practical circles. As far as the future of counterclaim system in our country, it is inevitably rational to specify and subdivide all kinds of counterclaim system rules and regulations, and expand the functions of settling disputes.Based on the present situation of counterclaim and judicial practice, by using the methods of comparative analysis, functional analysis and illustrative demonstration, this paper focuses on the reflection and suggestions to counterclaim system of our country. Besides the introduction and the conclusion, the article is divided into six chapters. Firstly, it introduces the basic principle of counterclaim system including the definition, feature and value of counterclaim system. Secondly, it discusses the starting rules of counterclaim from the subject, time and style to apply for the counterclaim. Thirdly, it introduces and discusses the different views and question settings in jurisdiction regulation, involvement regulation and procedure regulation. In the procedure regulation, it emphatically analyses the procedure for counterclaim, the judge's elucidation and quashing an counterclaim. Finally, it explains and gives opinions and suggestions on the characteristic, applicability and rules and regulations of special rules for counterclaim system on re-counterclaim, pre-counterclaim and compulsory counterclaim and permissive counterclaim. By writing this paper, I hope to know more about the counterclaim system and bring its advantage into full play. Also I hope it can guide the smooth progress and development of our country's civil action, help the court and judges to hear civil disputes in a fair, efficient and rapid way, protect the litigant's legal right of action, avoid the court giving contradictory judges, stick up for judicial authority, and help to improve and perfect the system of civil action in our country.