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Research on Compulsory Counterclaim System

Author: LuFang
Tutor: ZhangJiaJun
School: Zhengzhou University
Course: Procedural Law
Keywords: compulsory counterclaim legislation the consequence ofinvalidity construction
CLC: D925.1
Type: Master's thesis
Year: 2013
Downloads: 8
Quote: 0
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Abstract


Counterclaim system is an important system of civil action,containing the rich legal value. With the development of social economy,the types of social disputes have become more and more complex and population growing day by day,various countries reform their counterclaim systerms more or less to meet the demands in this time.In these reforms,the compulsory counterclaim system of America is the most distinctive. Compulsory counterclaim system is that the defendant must mention the counterclaim from the identical legal relationship or the identical fact with the action in the same process;he will lose the right to propose this request in the later lawsuit if he does not propose the counterclaim. Compulsory counterclaim system is relative to permissive counterclaim. Counterclaim invalidity is a specific form of litigation invalidity,and the litigation invalidity reflect the counterclaim invalidity.The legitimacy basis of compulsory counterclaim system includs the theory of loss of rights on litigation and the rule against splitting a cause of action. The compulsory counterclaim system has its unique value.On the one hand,with the effect of losing right,it causes two or many sues to merge to try,avoiding the contradictory judge maintaining the judicial authority and the legal system unity,on the other hand,it can save the lawsuit cost,enhance the lawsuit efficiency,and realize the time efficiency of lawsuit.As the system run well in America,more and more countries begin to pay close attention to the system. Some countries provid the system in the legislation. America, England,Germany,Philippines and Taiwan all have the regulations to some degree.Of course,many people think that the syetem has the conflicts with traditional theory in civil procedure, such as litigation right theory and disposition doctrine.The compulsory counterclaim system enhances the intervention of the court,and restricts the right of the parties,this reflect the requirements of the pursuit of economic litigation and legal order is higher than the will of individual welfare.Since the legislation on the counterclaim system of our country was too simple and scattered,thus affecting the correct application and utilization rate of the counterclaim in the judicial practice. This also caused the inability of counterclaim system to perform its proper function and value.Based on the above analyses,this paper holds that establish the compulsory counterclaim system in our country is necessary and practicable.Aiming at the disadvantages of our existing counterclaim system,we should analyse the theory and the judicial practice of compulsory counterclaim system comprehensively,based on this,we can use the system for reference,combining with the actual situation of our country,set up in the legislation a compulsory counterclaim system that meets our economy,society and legal system development, order to exert the function of our counterclaim system better.Based on the above recognizant,this paper has taken the "research of compulsory counterclaim system"as the title and has done an overall research on the concept,legislation,theoretical basis and the conflicts with related theory in civil procedure of compulsory counterclaim system.At the same time,the article analyses the status and problems of our counterclaim system. Based on this,the article has done the research on setting up the compulsory counterclaim system of our country. The author believes that the specific construction of the compulsory counterclaim system should mainly begin from several aspects such as the material condition,the subject,the sue time,the jurisdiction,exception rules and the procedure guarantee.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Civil Procedure Law
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