1982 "People's Republic of China (PRC) civil procedure law (for trial implementation)" was promulgated and implemented.
Article 46 stipulates: "If the defendant admits or refutes the claim, he has the right to file a counterclaim."
Article 109 also stipulates: "If the plaintiff makes additional claims and a third party makes claims related to this case, they may be tried together." .
1991April 9, the contents of counterclaim in the Civil Procedure Law are the same as those in the Civil Procedure Law (for Trial Implementation). The Supreme People's Court's Opinions on Several Issues Concerning the Application of the Civil Procedure Law of People's Republic of China (PRC), as a supplement to the civil procedure law, has made some supplementary provisions on the specific practices of the counterclaim system.
Article 184 stipulates: "In the procedure of second instance, if the plaintiff in the original trial adds an independent claim or the defendant in the original trial counterclaims, the people's court of second instance may mediate the added claim on the basis of the principle of voluntariness of the parties. If mediation fails, inform the parties to sue separately. "
Characteristics of counterclaim application
Article 1 the particularity and duality of the parties
Because counterclaim is an independent counterclaim put forward by the defendant in this lawsuit to the plaintiff in this lawsuit, the plaintiff in counterclaim is the defendant in this lawsuit, that is, the parties to counterclaim are specific, and the status of the parties to counterclaim in the lawsuit is dual.
The second request is independent.
Counterclaim is an independent lawsuit, which has the elements of litigation establishment. Although counterclaim is a counterclaim made by the defendant to the plaintiff in the course of this lawsuit, it is not necessarily attached to this lawsuit. The counterclaim put forward by the defendant has the elements of prosecution, so even if the lawsuit is withdrawn, the counterclaim can exist independently and can be tried and judged by the court as an independent case.
The third item is antagonistic.
The filing of counterclaim can make this lawsuit meaningless and can annex or offset the plaintiff's claim.
Article 4 The time for counterclaims is limited.
There is a strict time limit for filing a counterclaim. According to the third paragraph of Article 34 of the Provisions of the Supreme People's Court on Evidence in Civil Proceedings, it shall be submitted before the expiration of the time limit for adducing evidence.
Extended data:
Global Network Comprehensive Report165438+1October 17, Beijing Chaoyang District People's Court held its first public hearing to hear the case of trademark infringement and unfair competition between Beijing Daoxiang Village (Beidao) and Daoxiang Village Group (Sudao). This trial is the first confrontation between Daoxiang Village of North and South in civil tort litigation.
In court, Beidao claimed that Sudao deliberately took advantage of Beidao's popularity in a specific geographical market and used "Daoxiang Village" and trademarks similar to Beidao's brand name and trademark as store logos and product logos. Beidao asked the court to order Daoxiangcun Food Group Co., Ltd. to change its enterprise name, and the word "Suzhou" must be added before "Daoxiangcun"; Ask Su Dao to stop using the trademarks of "Fanjie Daoxiang Village" and "Daoxiang Village" in four stores in Beijing Wangfujing and its official WeChat WeChat official account account; Su Dao is required to compensate for economic losses and reasonable rights protection expenses of 3.5 million.
In response to the allegations made by Beidao, Sudao claimed that it did not infringe any of its exclusive rights to use registered trademarks, nor did it commit any infringement, and requested the court to dismiss all its claims. Su Dao argued that the brand name and business logo of "Daoxiang Village" was founded in 1773 Guanqian Street, Suzhou.
According to the basic principles of intellectual property law and the knowledge of protecting prior rights, Su Dao has the right to use any form of commercial logo of Daoxiang Village, including fan-shaped logo.
Secondly, Daoxiang Village, as a time-honored brand in China, enjoys a world-renowned reputation. There is no legal and factual basis for Beidao's request to add the word "Suzhou" before Daoxiang Village. Third, "Beijing specialty" does not refer specifically to Daoxiang Village in Beijing, and Su Dao's use of the term "Beijing specialty" does not constitute unfair competition against North Rice.
Finally, Internet e-commerce is a new development of the original sales model. Su Dao developed the Internet sales model before Bei Dao. Beidao does not enjoy any exclusive rights on the Internet e-commerce platform, and has no right to ban Sudao's reasonable and legal commercial industry.
No verdict was announced on the day of the trial. According to public information, Daoxiang Village was founded on 1773 in Guanqian Street, Suzhou, with a history of 243 years. It is the first batch of Chinese time-honored enterprises certified by China Ministry of Commerce. 1983, the trademark of the pastry "Daoxiang Village" held by Suzhou Daoxiang Village was approved and registered by the State Trademark Office.
Baidu Encyclopedia: Counterclaim
Public trust. Com: "Su Dao" responded to the 3.5 million claim that it would counterclaim "North Dao" for infringement.