The characteristics of a counterclaim, what is a counterclaim

A search is cautious, what is a counterclaim.

1. "Counterclaim" refers to the act of filing an independent claim against an act related to the original lawsuit in a lawsuit that has already been filed. The counterclaim must have a relationship in which the defendant can only be filed against the plaintiff, and there is no counterclaim between other litigation participants; It must be brought before the court before which the action is seized, otherwise it may be an indictment rather than a counterclaim; It must be filed after the court accepts the lawsuit and before the conclusion of the court arguments, and it is not a counterclaim before or after; The claims and factual grounds of the counterclaim are implicated in this lawsuit and have a legal connection, otherwise Jian Xiang would have to file a separate lawsuit and cannot be tried together.

2. Legal basis: Article 233 of the Civil Procedure Law of the People's Republic of China.

The parties to the counterclaim shall be limited to the scope of the parties to the present claim.

Where the claims of the counterclaim and the litigation are based on the same legal relationship, there is a causal relationship between the litigation claims, or the litigation claims of the counterclaim and the litigation claim are based on the same facts, the people's court shall combine them for trial.

Where the counterclaim shall have the exclusive jurisdiction of another people's court, or is not related to the subject matter of the lawsuit or the facts or reasons on which the claim is based, a ruling shall be made not to accept it, and a separate lawsuit shall be notified.

2. What is the difference between a counterclaim and a defence?

1. The nature of the counterclaim is different, and the essential attribute of the counterclaim is that it is a lawsuit, which is an independent litigation claim. The defense is not a kind of request for the world's right, but the right to resist the right of claim, which is a kind of litigation right, and no matter how it is defended, no new claim will arise.

2. The time of filing is different. A counterclaim can only be filed before the conclusion of the debate in the court of first instance, while a defense may be raised at any time during the first instance, second instance, retrial, or retrial. The counterclaim and the present claim may be tried together, or they may be sued separately without joining, and they are independent, while the defense can only be carried out in the proceedings that have already been initiated.

Legal analysis: A counterclaim is 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. The counterclaim should meet the conditions for filing a lawsuit, and it can only be filed by the defendant against the plaintiff in the lawsuit, and not against anyone other than the plaintiff.

Legal basis: Article 51 of the Civil Procedure Law of the People's Republic of China The plaintiff may waive or modify the litigation claim. The defendant may admit or refute the claim and has the right to file a counterclaim.

Article 119:The following requirements must be met for initiating a lawsuit: (1) the plaintiff is a citizen, legal person, or other organization that has a direct interest in the case; (2) There is a clear defendant; (3) There are specific litigation claims, facts, and reasons; (4) It is within the scope of civil litigation accepted by the people's court, and the jurisdiction of the people's court accepting the lawsuit.

A counterclaim refers to the act in which the defendant files an independent lawsuit against the conduct related to the original lawsuit in a lawsuit that has already been filed.

Counterclaim is an important procedural right of the defendant, and it is a special means used by the defendant to protect its legitimate rights and interests. However, there are conditions for filing a counterclaim, provided that: (1) the counterclaim must be brought against the plaintiff and not against anyone other than the plaintiff.

2) It can only be brought before the court hearing the lawsuit. (3) The time of filing the lawsuit must be after the lawsuit is filed and before the collegial panel deliberates. (4) The issues raised in the counterclaim must be relevant to the present claim.

If the plaintiff sues for divorce and the defendant files a counterclaim, requesting the court to confirm that the marriage relationship is invalid in the first place; The plaintiff sued, demanding that the defendant deliver the goods according to the sales contract, and the defendant filed a counterclaim, claiming that the contract itself was invalid and demanding that it be revoked in accordance with the law. Wait a minute. The purpose of the counterclaim is to offset and annex the lawsuit and make the lawsuit useless, which will make the plaintiff's lawsuit lose its practical significance.

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If there is no connection between the two facts, such as the plaintiff sues and asks the court to confirm that the ownership of the house where the defendant lives belongs to him, and the defendant demands that the plaintiff must repay the arrears. The two issues are not linked, and the defendant's claim that the issue of repayment of the debt is not a counterclaim, and if necessary, should be prosecuted separately.

After the defendant filed a counterclaim, the plaintiff filed a lawsuit in this lawsuit. Where a counterclaim and this lawsuit exist at the same time, they may be tried together, but they shall be reviewed and sentenced separately. Each party is both the plaintiff and the defendant, and enjoys the rights and obligations of the plaintiff and the defendant.

In addition to the right of the defendant in civil and economic cases to file a counterclaim, the defendant in a private criminal case also has the right to file a counterclaim.

There is a fundamental difference between a counterclaim and a defence. "Defense" refers to the defense of the defendant or appellee in a civil (including civil incidental to a criminal case), economic or administrative case on the basis of facts and law in response to the issues raised in the complaint or appeal submitted by the plaintiff or appellant to the people's court. The defendant and the appellee file a defense, which is a necessary procedure in civil, economic and administrative litigation, and is also an important procedural right.

The people's courts shall ensure that they can correctly exercise this right so that the parties have equal rights in litigation. As for the parties' refusal to reply, it does not affect the people's court's lawful trial of the case.

The counterclaim has the following characteristics:

1. The litigation status of the parties to the counterclaim and the present lawsuit are dual, the plaintiff in this lawsuit is the defendant in the counterclaim, and the plaintiff in the counterclaim is still the defendant in the present lawsuit.

2. The counterclaim is independent, and the counterclaim and the claim of this lawsuit are two different claims that are both implicated and independent.

3. The purpose of the counterclaim is to offset and annex the civil rights and interests asserted by the plaintiff in this lawsuit.

Legal analysis: A counterclaim refers to an independent counterclaim filed by the defendant in this lawsuit against the court in connection with the plaintiff in this lawsuit with the plaintiff of the plaintiff in this lawsuit as the defendant in a civil lawsuit that has already begun (referred to as the present lawsuit in the procedural law). 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.

Legal basis: "Civil Procedure Law of the People's Republic of China" Article 51: Plaintiffs may abandon or modify litigation claims. The defendant may admit or refute the claim and has the right to file a counterclaim.