The Comparison Study Of Counterclaim System

Because of its important function of resolving disputes, counterclaim has an important role in the lawsuit. From a historical perspective, offset on the counterclaim system originated from the ancient Roman law system. Offset is known as the right to claim against the primary form of the counterclaim is known as the right to claim against the senior form.However, the world about how to make full use of the counterclaim system, particular way is different. American law system encourage the expansion of counterclaim, advocate to make full use of the counterclaim system, solving all disputes at the same time.China absolutely hold comparative prohibited counterclaim view, forbidden the expansion of counterclaim function. In view of different counterclaim, the constitutive of counterclaim vary from one country to another.In litigation activities, each party of the suit argues for its own purpose. If one party hold the view that the assertion is not reasonable and there is another evidence to prove that, he can also join in the lawsuit,. In the civil lawsuit of modern society, the defendant is no longer in a weak position, he can not only to the plaintiff’s claim their rights, when meet certain conditions, he can request the court in the form of litigation suing for a decision on it.The purpose is to resolve disputes, counterclaims is one of the solution to effectively solve the dispute,it also should become one of the important purposes of counterclaim, which conforms to the theory of civil litigation purposes. Therefore, China should perfect the related system in order to expanse the function of the counterclaim on the basis of comparative law, he Also should pay attention to at the same time. The design of the counterclaim system embodies the protection of counterclaim the plaintiff, protecting the equal rights of the parties.Therefore, this essay discuss on the following questions:In the first chapter of this article, the author investigates the legal basis for the counterclaim system on the theoretical foundation of the counterclaim system. Then, the author also discuss counterclaim and offset respectively.In the second part of this article, comparative law is discussed.From the origin of the counterclaim system, the author discuss cultural basis, connotation, counterclaim function and comparing concrete constitutive requirements,hoping to provide some good idea for the development of the counterclaim system in China. The third part of this article introduce the origin and current situation of our country’s counterclaim system. In the last chapter of this article, from the perspective of litigation balance,the author put forward own opinion. In the author’s opinion, we can absorb something from the outside system, in order to improve counterclaim system in civil lawsuit system.on the one hand, through the division of compulsory counterclaim, balance the judge’s discretion and the litigation right of both parties, after all, the lawsuit system is not only for one person, but for public use.In order to perfect the system,we should pay attention to the following questions:such as balance the right to file a counterclaim and the judge’s discretion. Jurisdiction over the restriction of the right to counterclaim, embodied in the court under certain conditions for the counterclaim accept have a right to freedom of discretion;On the other hand, we should balance counterclaim rights and the right to Sue with the establish of Compulsory counterclaim;Third, achieve the equilibrium of counterclaim subjective standard and objective standard, which is the discretion of the judge must be based on the rule of law, discretion and balance the relationship between the rule of law;But the system of counterclaim should also be improved by promoting people’s use of lawsuit system, prevent the happening of the conflict or expand, litigation triage and hydrophobic.