第三人反诉的制度比较与理论证成

The System Comparison and Theoretical Proof of the Third Party Counterclaim

第三人反诉区别于传统的反诉制度,其意指在原告诉被告的本诉中,本诉的被告利用反诉的形式单独对原告以外的第三人提出诉讼,并将其纳入到同一诉讼程序中。其核心价值在于,将诉讼第三人制度同传统反诉制度相结合,在对传统反诉主客观范围进行扩张解释的基础上,类推解释适用反诉制度,以此解决诉讼第三人制度的问题。法国、德国在立法上或实务中,都在一定条件下承认了第三人反诉制度的合法性。在参照域外经验的基础上,结合对我国第三人反诉制度构建基础的考察,文章认为我国实有必要建立第三人反诉制度,以此拓宽第三人诉讼参与的渠道并实现纠纷的一次性解决。

The third party counterclaim is distinct from the traditional counterclaim system.It means that in the original lawsuit which the plaintiff sue against the defendant,the defendant of the original lawsuit separately sue a third party other than the plaintiff in the form of counterclaim and include the counterclaim herein in the same proceedings.The core value lies in the combination of the lawsuit third party system and the traditional counterclaim system.On the basis of the expanded interpretation of the subjective and objective scope of the traditional counterclaim,the counterclaim system is applied by means of analogized explanation,so as to solve the problem of the third party system.It has been recognized the legitimacy of the third party counterclaim system under certain conditions in legislation or practice both in France and Germany.Based on the foreign experiences,and combined with the investigation of basis of the third party counterclaim system of China,this paper suggests that China establish a third party counterclaim system,in order to broaden the channels for third party lawsuit and achieve one-off resolution of disputes.