On The Improvement Of Civil Counterclaim System In China

Counterclaim system, which is an important system universally existing in civil procedure of various countries, has important function and value in maintaining the balance between the litigious rights of the parties, promoting the economical litigation and avoiding contradictory judgment. However, in our country, due to the big differences in the theoretical research for such an important system, the relevant legal provisions is relatively brief and rough, which has hindered display of the function of the counterclaim system in judicial practice. Under the contemporary background of the disputes settled in court explosion and the implementation of case-filing register system, to explore the improving strategies of Chinese civil counterclaim system is necessary and urgent.This thesis is divided into four parts except the introduction and epilogue.The first part is a basic overview about the relevant theories of the counterclaim system, mainly including the concept, nature and characteristics, theoretical foundation, function and value of civil counterclaim. Through understanding and elaborating the relevant theoretical knowledge,the actuality of theory investigation of the counterclaim system can be understood objectively and systematically.As an essential part in civil procedure, the importance of the counterclaim system and the necessity of improving it are further embodied in this part as well.Moreover, the development direction of the counterclaim system can be analyzed and predicted, from which the researchers can seek the guidance in direction and method for the perfection of Chinese civil counterclaim system.The second part is mainly about the analysis on the legislative and judicial status of Chinese civil counterclaim system in detail. So far, the Civil Procedure Law of the People's Republic of China and related judicial interpretation have never specified counterclaim systematically as a litigation system.The legal provisions relating to civil counterclaim are not comprehensive and detailed enough, this situation has led to difficulties the judicial staff will encounter in the process of applying the law and confusion in the judicial practice of dealing with the relevant cases, which has brought a detrimental influence upon maintaining the judicial authority of the court and protecting the legitimate rights and interests of the parties equally.The third part introduces the characteristics of the counterclaim system of the Anglo-American law system and continental law system and deeply analyses the content we can learn from. The countries of Anglo-American law system actively outspread the function of the counterclaim system in civil procedure and make full use of the counterclaim system to settle the correlative disputes simultaneously. On the contrary, the continental law system plays the function of the counterclaim system cautiously and limits the expansion of counterclaim in principle. On the basis of the comparison and analysis of the two different types of systems both have the advantages and disadvantages in practice, focuses on the content valuable and suitable for China's national conditions and needs, in order to carry out the legal transplant.The fourth part is to elaborate the practical suggestions of improving Chinese civil counterclaim system in the aspects of legislation and judicature. On legislation, in order to promote the relevant laws and regulations to be systematic and comprehensive, in this part, the improving suggestions is expounded on the concept of counterclaim, the elements to bring a counterclaim, the acceptance and hearing procedure of counterclaim and the regulation mechanism for the abuse of litigious rights. Then, in judicial practice, the author make utmost efforts to explore specific improvement measures from the court's internal management mechanism and the obligations of clarification of judges these two aspects.By this way,the author hopes to be able to make a contribution to promoting standardized implementation of the system of civil counterclaim in our country.