反诉制度之重构

On Restructuring of the Counteraction Systemw

我国民事诉讼法虽确立了反诉制度,但内容过于简略,理论界对反诉的诠释分歧较大,实践中掌握的标准也不统一,重构反诉制度显得尤为必要。根据反诉与本诉的实质联系不同,可将反诉分为强制反诉和任意反诉。反诉应在举证期限届满前向受理本诉的法院提起,且反诉的事项不属于其他法院专属管辖;反诉只能存在于通常诉讼程序和一般诉讼案件中,在某些特殊类型的案件中不存在反诉的可能,或虽可提起反诉,但应受到一定的限制。

s The civil proceeding law of our country has laid down the counteraction but its regulations are too simple. The explanations on them in the theory circle are different and the standards in practice are also different so it is essential to reconstruct the counteraction. According to the relationship between the original action and counteraction the counteraction can be divided into two catogories compulsory counteraction and permissive counteraction. Counteraction should be taken to the court that has filed the original action before the end of the evidential period which doesn't belong to the exclusive jurisdiction of the other courts. People can take a counteraction only in the common civil procedure and in the common civil cases. In some special cases people can't take a counteraction or they can under special requirements.