对反诉制度和理论的深层次分析

文章分析了我国法学界忽视的两个问题:反诉的构成要件和反诉管辖,并认为在此前提下,反诉应以关联性为构成要件.而关联性与反诉与本诉的诉讼请求、事实与证据以及攻击和防御方法有牵连.最后,鉴于强制反诉有诸多缺陷,我国至少目前不能引入该项制度.

Analysis of the System and Theory of Counterclaim

Many people have commented much on the issue of counterclaim,but they omitted two basic problems.One is component element of counterclaim,,which is seriously neglected and confused with the so called "condition" of starting sounterclaim.Another lies in jurisdiction of counterclaim which get validity on the ground of "nature of relation" between claim and counterclaim.Based on above,"nature of relation" should be the internal element coungterclaim,and it refers to that there should have relations in claim,facts proofs and method of defense between plaintiff's claim and counterclaim.Last,because of many flaws of compulsive counterclaim,our country can not adopt this system which lives comfortably in the United States.