| The judicial interpretation of China’s civil procedure law in 2015 clearly defines the scope of the subject of counterclaim and makes up for the shortcomings of the previous legislation on counterclaim system,but it still maintains a strict position of restriction,limiting the scope of the counterclaim defendant to the plaintiff of this lawsuit.This kind of stipulation not only limits the function of counterclaim,but also is difficult to adapt to the diversified litigation needs of dispute types.In addition,in the common law countries and some countries and regions of the civil law system,it has become an international trend to expand the subject qualification of counterclaim defendants,especially in Germany and Chinese Taiwan,gradually relax the strict and conservative counterclaim concept.On the premise of our own national conditions,China should learn from the practical achievements of other countries(regions),accurately grasp the unique value and legislative purpose of the counterclaim system,clarify the subject conditions of counterclaim application,no longer strictly limit the scope of counterclaim defendants,recognize the legitimacy of the expansion of the scope of counterclaim defendants,and make it connect with the third party system and the common litigation system,which is also the inevitable principle of the counterclaim system development trend.From the perspective of procedural law,this paper expounds the theoretical basis,current situation and current provisions of the range of counterclaim defendants,makes an investigation by using practical data,and draw on the experience of extraterritorial countries(regions),put forward perfect countermeasures for the deficiency of China’s counterclaim system.In addition to the introduction and conclusion,this paper is divided into the following five chapters:The first chapter is the theoretical explanation of the range of counterclaim defendants in China.The purpose of this chapter is to introduce the theoretical content of the expansion of the scope of counterclaim defendants: first,the expansion of the scope of counterclaim defendants is clearly defined,and the extent of the expansion of counterclaim defendants is proposed;secondly,the necessity of the expansion of counterclaim defendants is demonstrated from the three aspects of the actual needs of the domestic society,the understanding of the contradictions in the definition of counterclaim defendants in judicial practice,and strong support for the expansion of the scope of counterclaim defendants in theoretical research;finally,from the four aspects of the principle of equal right of action of the parties,the principle of one-time settlement of disputes,the principle of the combination of the main body of the action and the unique function of the counterclaim itself as the theoretical support,it can provide the legitimate academic basis for the expansion of the counterclaim defendant.The second chapter is the current situation of the counterclaim defendant in China.This paper introduces the scope of counterclaim defendants in China from two aspects of civil procedure legislation and judicial practice,and reveals the current situation of the provisions that restrict counterclaim defendants to plaintiffs in China’s civil procedure legislation,closely links the existing provisions and relevance,and analyzes the existing problems in the common litigation system.The third chapter is the comparative study of the counterclaim defendant.This chapter first combs the definition of the scope of counterclaim defendants in the civil counterclaim system of Britain and the United States,which are the most representative countries of the common law system.The common law system is a positive expansion concept,which does not limit the scope of counterclaim defendants.Then it introduces the counterclaim system of Germany,Japan,France and Chinese Taiwan,which provides the legislative technical support for the expansion of counterclaim defendants in China.The fourth chapter is the conception of the expansion of the scope of counterclaim defendant.This chapter is based on the concept of improving the scope of counterclaim defendants.Firstly,it establishes the principles that must be abided by for the expansion of counterclaim parties under the current legal environment and system configuration in China,which are mainly based on appropriate expansion,guided by respecting the will of parties,and guaranteed by the management rights of judges.Secondly,it expounds the boundary of the expansion of the range of counterclaim defendants.In this part,it redefines the implicated relationship between counterclaim and this lawsuit,and describes in detail the situation that the third person outside the case is the counterclaim defendant.At the same time,it gives some reference to the introduction of litigation in the United States.At last,it puts forward the protection of the right of action for the expansion of the counterclaim defendant,mainly the research on the issue of re counterclaim and the protection of the rights and interests of the introduced third party. |
