What are the conditions for filing a counterclaim The conditions for filing a counterclaim

(1) It must be filed by the defendant in the lawsuit to the plaintiff in the lawsuit.

The identity of the parties to the counterclaim and the present suit determines that only the defendant in the present suit can file a counterclaim against the plaintiff in the present suit. If you are not the defendant in this lawsuit, if you are a third party without an independent claim, or the defendant's litigant, you have no right to file a counterclaim.

2) must be raised in the course of the present lawsuit.

The proceeding of the lawsuit refers to the time after the court accepts the lawsuit and until the end of the court debate. The court has not yet accepted the lawsuit, the proceedings have not yet begun, and the counterclaim cannot be filed. Now that the court arguments have been concluded, the re-acceptance of the counterclaim will not only fail to achieve the purpose of litigation economy, but will also cause delay in litigation.

After entering the second-instance trial procedure, the defendant of the original trial can still file a counterclaim, but after the second-instance court accepts the counterclaim, it can no longer make a judgment on the counterclaim, because the party who is dissatisfied with the judgment of the counterclaim can no longer appeal, which violates the two-instance final adjudication system. The court of second instance may handle the lawsuit and counterclaim through mediation, and if mediation fails, it shall inform the parties to file a separate lawsuit, and cannot remand the lawsuit and counterclaim to the court of first instance for retrial.

3) It must be filed with the court that accepts the lawsuit, and the court to which the lawsuit is filed has jurisdiction over the counterclaim.

The counterclaim is filed in the course of the proceedings and is to be heard together with the proceedings of the proceedings, so the counterclaim can only be filed with the court before which the suit is seized. Jurisdiction is a prerequisite for the court to exercise its jurisdiction over a particular lawsuit, so the court to which the suit is filed must have jurisdiction over the counterclaim. The jurisdiction of the court hearing the lawsuit over the counterclaim may be obtained on the basis of implicated jurisdiction, but if the counterclaim falls under the exclusive jurisdiction of another court, the court accepting the lawsuit has no jurisdiction, and the defendant in the lawsuit can only file a separate lawsuit with the court with exclusive jurisdiction.

4) The same litigation procedures shall be applied to this lawsuit.

The counterclaim must be subject to the same litigation procedures as the present litigation before the litigation procedures of the current litigation can be used for joining. If the summary procedure applies to the present claim and the ordinary procedure applies to the counterclaim, it will be difficult to consolidate the two claims and the counterclaim will be meaningless. (5) There is an implication relationship between the counterclaim and the present claim.

The counterclaim filed by the defendant must be directed against the plaintiff in the case, and generally should be legally or factually implicated with the plaintiff's claim, otherwise the court will not be able to join the trial, and the counterclaim will lose its practical significance, and the defendant must file a separate lawsuit.

Legal Analysis:1Article 108 of China's Civil Procedure Law stipulates that:

The following conditions must be met: (1) the plaintiff is a citizen, legal person or other organization with a direct interest in the case; (2) there is a clear defendant; (3) there are specific claims and factual grounds; (4) It is within the scope of civil litigation accepted by the people's courts. To file a counterclaim, the general requirements for initiating a lawsuit must first be met.

2.The counterclaim did not exceed the statute of limitations. It cannot be considered that the lawsuit is within the statute of limitations, and the counterclaim is naturally within the statute of limitations, and if the lawsuit exceeds the statute of limitations, the counterclaim does not necessarily exceed the statute of limitations.

As an independent claim, the counterclaim should comply with the provisions of the statute of limitations.

Legal basis: "Criminal Procedure Law of the People's Republic of China" Article 213: Defendants in private prosecutions may raise counterclaims against the private prosecutor during the course of litigation. The provisions on private prosecution shall apply to counterclaims. Feast.

The following conditions must be met to file a counterclaim: 1. The counterclaim must be premised on the present lawsuit. The counterclaim and the present claim are two inseparable systems, without which there can be no counterclaim.

Therefore, a counterclaim can only be filed by the defendant in the present lawsuit, that is, the defendant in the counterclaim must be the plaintiff in the original lawsuit, and the plaintiff in the counterclaim must be the defendant in the original claim, and no other participants in the litigation or outside the case have the right to file a counterclaim. 2. The counterclaim must be filed after the lawsuit is filed, before the people's court announces the judgment or before the mediation document is served. 3. The counterclaim and the present lawsuit must be under the jurisdiction of the same people's court.

4. The counterclaim and the lawsuit must be substantially implicated, that is, the counterclaim and the claim or cause of action of the lawsuit are based on the same facts or the same legal relationship before a counterclaim can be filed.

What are the conditions for filing a counterclaim: A counterclaim refers to an independent counterclaim filed by the defendant in a civil lawsuit (called the present lawsuit in the procedural law) proceedings that have already begun, with the plaintiff of the lawsuit as the defendant, to the court to which the lawsuit is filed. This right is also an important embodiment of the principle of equal legal status of the parties, an important right enjoyed by the defendant in this lawsuit, and an important system to protect the civil rights and interests of the defendant in this lawsuit. 1. Article 173 of the Criminal Procedure Law of the People's Republic of China:

In the course of litigation, the defendant in a private prosecution may file a counterclaim against the private prosecutor. The provisions on private prosecution shall apply to counterclaims. "2. "Counterclaim in criminal proceedings" refers to the procedural conduct in which the defendant in a case of a private prosecution accuses the private prosecutor of committing a criminal act related to the case, as a victim, and submits a request to the people's court to request that the people's court combine the trial and pursue his criminal responsibility in accordance with law.

There are four conditions that must be met to file a counterclaim: (1) the object of the counterclaim can only be the private prosecutor in the case; (2) the content of the counterclaim must be an act related to the case; (3) the counterclaim falls within the scope of Article 170, Paragraphs 1 and 2 of the Criminal Procedure Law; (4) The counterclaim shall be filed at the latest before the judgment is pronounced in the private prosecution case. 3. The provisions on private prosecution shall apply to counterclaims.

Once a counterclaim is established, the people's court may join the private prosecution case for trial. In this kind of mutual litigation case, both parties are both private prosecutors and defendants, and enjoy the same rights to litigation history. If a party to a private prosecution or counterclaim applies for withdrawal of the complaint, the court shall continue to hear the action for which no withdrawal has been applied after agreeing to the withdrawal of the complaint by the party.

If both parties must be punished, they shall be imposed separately according to their respective culpability, and the penalties shall not be offset against each other.

To file a counterclaim, the following conditions must be met:

1. The defendant of the lawsuit submits to the plaintiff of the lawsuit that this is the specificity of the subject.

2. There must be an implication between the counterclaim and the present lawsuit. That is, the counterclaim and the subject matter of the lawsuit are the same or implicated, and the two originate from the same legal relationship or related legal relationship. The purpose of the counterclaim is to offset or annex the claims of the plaintiff in the present action.

3. A counterclaim must be filed in the course of the limb complaint. According to article 34 of the Provisions on Evidence in Civil Procedure, the evidence shall be presented before the expiration of the time limit for presenting evidence.

4. It must be filed with the court accepting the lawsuit, and the court to which the lawsuit is filed has jurisdiction over the counterclaim. However, if there is agreement or exclusive jurisdiction in the dispute between the parties, the court of the present lawsuit may not obtain jurisdiction based on the implicated jurisdiction, and therefore cannot accept the counterclaim.

5. The same litigation procedure shall apply. If the summary procedure is applied to the present claim, and the counterclaim should be subject to the ordinary procedure, the counterclaim cannot be filed.

1. The detailed difference between a counterclaim and a rebuttal.

A counterclaim is not the same as a rebuttal. Rebuttal refers to the defendant's refutation of the facts, reasons, and evidence on which the plaintiff's claim is based. including providing evidence to the contrary; partially or wholly overturning the facts and evidence adduced by the plaintiff; Propose a new legal basis to refute the plaintiff's error in invoking the law in order to argue that the plaintiff's claim is partially or wholly untenable.

Rebuttal is a procedural right enjoyed by the defendant in accordance with the law, and it is also a defensive means often adopted by the defendant in litigation. Although the purpose of the rebuttal is to make the plaintiff's purpose of the lawsuit unavoidable, it is not an independent claim against the plaintiff. A rebuttal is a purely defensive act of the defendant, whereas a counterclaim is a defense by the defendant by launching an attack.

The key to distinguishing between a counterclaim and a refutation lies in whether the defendant has made an independent claim against the plaintiff.

First, the nature is different.

The counterclaim is filed by the defendant against the plaintiff's present lawsuit, and is an independent lawsuit with the nature of a lawsuit. On the other hand, rebuttal is only a means of litigation for the defendant to refute the plaintiff, which is not an independent lawsuit and does not have the nature of a lawsuit.

Second, the premise is different.

The counterclaim is premised on the recognition of the existence of the lawsuit, and the defendant does not deny the plaintiff's claim. The rebuttal is premised on the denial of some or all of the plaintiff's claims;

Third, the purpose is different.

In addition to offsetting, annexing and excluding the plaintiff's claims and making the plaintiff lose the lawsuit, the defendant counterclaim also raised an independent counterclaim against the plaintiff and asserted independent rights. The purpose of the rebuttal is only to deny the plaintiff's claim, and there is no independent claim.

The counterclaim must meet the conditions for civil litigation, and the counterclaim must meet the following conditions: first, the counterclaim can only be initiated by the defendant to the plaintiff, and there is no counterclaim between other litigation participants; Second, the counterclaim must be filed with the court that accepts the lawsuit, otherwise it may be a lawsuit rather than a counterclaim; Third, the counterclaim must be filed after the court accepts the lawsuit and before the end of the court debate, and it is not a counterclaim before or after; Fourth, the claims and factual grounds of the counterclaim are implicated in this lawsuit and have a legal connection, otherwise they will have to be sued separately and cannot be tried together.

1. Counterclaim trial process:

1. First, the clerk shall ascertain whether the parties and other participants in the proceedings have appeared in court and announce court discipline;

2. Second, the presiding judge is to announce **, and the presiding judge is to check the parties, announce the cause of action, announce the list of adjudicators and clerks, inform the parties of the relevant procedural rights and obligations, and ask the parties whether they have submitted an application for recusal;

3. Conduct court investigations.

2. How to file a counterclaim:

1. Filing of counterclaims. First, the counterclaim must be filed with the court hearing the lawsuit, otherwise it cannot be combined with the lawsuit and the purpose of the counterclaim cannot be achieved; Second, counterclaims can only be raised before the conclusion of the first-instance court's debate, and cannot be raised after the courtroom debate is concluded, let alone in the second-instance trial procedure.

2. The specificity of the object of the counterclaim, that is to say, the counterclaim can only be filed by the defendant of the lawsuit against the plaintiff of the lawsuit. It is generally believed that the parties to the present suit and the counterclaim cannot be increased or decreased, but the plaintiff's lawsuit and the defendant's litigation status have been reversed.

3. Independence of counterclaims. Its independence is manifested in three aspects: first, the defendant should file a counterclaim against the plaintiff to the court in accordance with the procedures and methods of litigation; Second, the counterclaim has independent elements of action, i.e., the parties, the subject matter of the litigation and the cause of action; Third, once a lawsuit is established, it will not be terminated by the withdrawal of the lawsuit, nor will it become invalid because the plaintiff has abandoned the claim, which is the essence of the counterclaim system, and it is also a sign of whether a counterclaim is constituted, and it is the key content.

4. The purpose of the counterclaim is adversarial, that is, the purpose of the counterclaim is that the defendant makes it in order to neutralize, exclude, or annex the plaintiff's claim, make the plaintiff's claim partially or completely useless, and even force the plaintiff to perform its obligations to itself. What the defendant can offset through a counterclaim is often a part of the plaintiff's claim, but it can be the whole of it.

Legal basis: "Criminal Procedure Law of the People's Republic of China" Article 213: Defendants in private prosecutions may raise counterclaims against the private prosecutor during the course of litigation. The provisions on private prosecution shall apply to counterclaims.