First of all, the counterclaim in civil litigation must be filed after the defendant is sued by the plaintiff. Secondly, if the other party files a counterclaim after the prosecution, the facts of the counterclaim must be consistent with the facts of the current lawsuit, or at least relevant. Thirdly, after meeting the above conditions, it is necessary to collect the necessary evidence about the above situation, so that the success rate of counterclaim will be much higher. Write a counterclaim (you can ask a lawyer to write it), stating the facts, reasons and evidence of counterclaim. Submit the counterclaim together with the materials collected in the early stage to the court under trial. After the court agrees, it is litigation and responding to the lawsuit.
Legal objectivity:
Counterclaim refers to an independent counterclaim related to this lawsuit filed by the defendant in this lawsuit with the plaintiff as the defendant in the civil lawsuit that has already started (called this lawsuit in 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. I counterclaim conditions 1. Counterclaim must first meet the conditions for prosecution stipulated in the Civil Procedure Law (1) The plaintiff is a citizen, legal person and other organization that has a direct interest in the case; (2) Having a clear defendant; (3) Having specific requests, facts and reasons; (4) It falls within the scope of civil litigation accepted by the people's court and is under the jurisdiction of the sued people's court. 2, counterclaim itself conditions (1) counterclaim can only be filed by the defendant to the plaintiff, not to anyone other than the plaintiff; (2) counterclaims can only be brought to the court that accepts the lawsuit; (3) counterclaim and this lawsuit must apply the same procedure; (4) Counterclaim cannot be the exclusive jurisdiction of other courts; (5) The counterclaim and the request of this lawsuit must involve facts or laws; (6) Time limit for filing. Paragraph 3 of Article 34 of the Supreme People's Court's Several Provisions on Evidence in Civil Proceedings (Fa Shi (20065438+0) No.33) stipulates that "if a party adds or changes a claim or files a counterclaim, it shall file it before the time limit for adducing evidence expires." 3. Substantive conditions of counterclaim The substantive conditions of counterclaim refer to the necessary conditions for the establishment of counterclaim. That is, the other conditions in the above (5) (counterclaim and the claim in this lawsuit must involve facts or laws. ) explain in detail. The necessary condition for filing a counterclaim is the implicated relationship between counterclaim and this case. Only with this meaning can counterclaim be established, so the substantive condition of counterclaim is the condition that determines whether the counterclaim put forward by the defendant belongs to counterclaim category. The so-called implication between counterclaim and this lawsuit means that counterclaim and this lawsuit have the same factual or legal connection or the same or subjective rights and interests based on the subject matter of litigation. Because of this connection, counterclaim and this lawsuit can be mutually exclusive, offset and attached, mainly in the following aspects: 1. The rebuttal is based on the same legal relationship as this lawsuit. Counterclaim and this lawsuit are based on and embody the same rights and obligations. For example, the plaintiff asked for alimony and the defendant asked for the dissolution of the adoption relationship. The basis of the plaintiff's request and the rights and obligations of the defendant are based on the same legal relationship of adoption. The counterclaim and this lawsuit are based on the same legal fact. In fact, counterclaims are related to the demands of this lawsuit. For example, if two ships collide, Party A requires Party B to compensate for the loss of the goods on board. B counterclaims against A for hull damage and personal injury caused by collision. The lawsuit and counterclaim are based on the same collision legal facts. Another example is that the plaintiff sued for divorce, and the defendant counterclaimed and asked the court to confirm that the marriage relationship was invalid; The plaintiff brought an action to demand the defendant to deliver the goods according to the sales contract. The defendant's counterclaim contract itself is invalid and requires to be revoked according to law. 3. Counterclaim and this lawsuit do not come from the same legal relationship or the same legal fact, but are based on the same or subjective rights and interests of the litigation object and the litigation reason, with the purpose of offset. This request should also be included in the scope of counterclaim. The reason why this relationship is also defined as implicated relationship is because it is beneficial to offset this lawsuit through counterclaims in litigation, avoid unnecessary repeated liquidation activities and avoid the consequences of the plaintiff's insolvency. For example, A rents the house to B to run the shop, and B fails to pay the rent on time. A didn't pursue it out of kindness, so A bought a batch of goods from B on credit to offset the rent. Later, there was a dispute between Party A and Party B, and Party B sued Party A for counterclaiming the payment, and Party A counterclaimed that Party B should repay the rent owed. The requests of Party A and Party B are neither the same legal relationship nor the same legal fact. B sued for payment of the price, and A counterclaimed for payment of the rent, and both parties' litigation objects were in currency. If the amount requested by the defendant is greater than that requested by the plaintiff, a counterclaim may be attached to this lawsuit; If the amount requested by the defendant is less than the amount requested by the plaintiff, the counterclaim can offset part of this claim, making this claim meaningless. This is completely in line with the purpose of counterclaim to offset and annex this claim. However, if two facts are not involved, such as the plaintiff suing and asking the court to confirm that the ownership of the house where the defendant lives is his, the defendant asks the plaintiff to repay the arrears. These two issues are not related, and the defendant's claim for repayment of debts is not a counterclaim. (If necessary, the case should be prosecuted separately. Second, the procedural requirements of counterclaim refer to the conditions such as the way, time and trial of counterclaim in the course of litigation. 1. counterclaim submission method. Counterclaim is unique to civil litigation. Is counterclaim allowed in criminal incidental civil action or administrative incidental civil action? Whether it is a criminal incidental civil action or an administrative incidental civil action, it is a civil action after all, and the original and the defendant have equal status, so counterclaims should be allowed. 2. Jurisdiction of counterclaim. Should the court hearing the complaint also have jurisdiction over the counterclaim? That is, when a counterclaim is filed separately, can the court accept it if it has no jurisdiction? Can counterclaim be established? As far as territorial jurisdiction is concerned, as long as the object of counterclaim does not fall within the exclusive jurisdiction of other courts as stipulated by law (because exclusive jurisdiction mostly involves the interests of the public), the court hearing this case can accept it and the counterclaim is established. This point has been strongly proved in foreign-related civil litigation. The subject who enjoys immunity from civil jurisdiction takes the initiative to bring a lawsuit to the court of the host country. When the defendant counterclaims, the subject enjoying immunity from jurisdiction no longer enjoys immunity from jurisdiction, and the court hearing this case has the right to accept counterclaims. As far as hierarchical jurisdiction is concerned, if the claim as counterclaim should be tried by a higher court or the claim as counterclaim should be tried by a lower court, both counterclaim and this lawsuit can be tried by the court hearing this lawsuit, that is, counterclaim can only be filed with the same people's court hearing this lawsuit. This should be clearly stipulated in the legislation. 3. The specific time of counterclaim. China's civil procedure law does not specify at which stage to file a counterclaim. In judicial practice, it is best to put forward the general tendency in the course of defense, at the latest after the trial debate in the court of first instance. Because when the counterclaim is filed, the trial debate has not yet ended, and the plaintiff still has a chance to refute it, he can apply for an adjournment. Otherwise, if a counterclaim is filed after the trial debate, it will inevitably lead to new litigation procedures, and it will also cause some duplication of work and delay the trial of this lawsuit. But can't you file a counterclaim after the trial debate? Nor can it be generalized. Because there are many cases in which witnesses are willing to testify or correct perjury after the prosecution and the defense, especially after the court debate, the parties cite the evidence collected through their last efforts. This kind of situation is more common in practice. In particular, some civil cases involving large amounts of subject matter and economic disputes in different places should be allowed to file counterclaims after the trial debate. Otherwise, the defendant is not allowed to file a counterclaim, or if a counterclaim is filed, it will be ignored. On the face of it, it will buy time and make the lawsuit settle in time. On the contrary, because the thorny procedure of this kind of dispute is execution, if the counterclaim put forward by the defendant is established after the trial debate and the counterclaim and the request of this lawsuit can be offset each other after the substantive trial, the execution problem will be solved. If the defendant is not allowed to file a counterclaim after the trial, but is allowed to file another lawsuit, there will be a time lag between the closing of this complaint and the counterclaim, which is likely to consume time and energy, and the result is sometimes difficult to predict. Therefore, in this case, we should be flexible and allow the defendant to file a counterclaim after the trial debate and before the judgment. Three. Several situations in which counterclaims are not applicable Article 52 of the Civil Procedure Law stipulates that the defendant has the right to file counterclaims, but there are no clear provisions on the time, conditions, forms and scope of counterclaims, as well as the circumstances in which counterclaims can be made and those in which counterclaims are not applicable. According to the legislative principle of our country, not all cases can be counterclaimed. 1. Counterclaim does not apply to litigation cases without defendant qualification. In the process of civil litigation, different litigation procedures have different names for the parties. In the procedure of first instance, they are called plaintiff and defendant; In the procedure of second instance, it is called appellant (defendant or plaintiff in the first instance) and appellee; In the trial supervision procedures of cases decided by our hospital for retrial, cases filed by higher courts, cases applied for retrial by the parties and retrial cases caused by the people's procuratorate, the parties were called plaintiffs and defendants in the original trial; In the execution procedure, it is called the application executor and the enforced person. Article 52 of the Civil Procedure Law stipulates that the defendant has the right to file a counterclaim. From the legislative point of view, it can be understood that only the party named as the defendant can file a counterclaim. A party who is not qualified as a defendant cannot file a counterclaim. 2. Counterclaims are not applicable to cases that are tried by special procedures in accordance with the law. Special procedure is a kind of civil trial procedure, which is suitable for people's courts to try special cases. Special procedures have made special provisions on trial level, trial limit, appellation of parties and trial procedure. These provisions are special rules that people's courts follow when trying some special cases. There are no conflicting parties (plaintiff and defendant) in such cases, only interested parties, and the problem to be solved is not a civil rights dispute. Special procedures generally do not begin with prosecution, but with interested applications. The cases tried by special procedures are varied, with no unified object and no common purpose. The judgment made by the people's court in handling a case according to special procedures will take effect immediately after it is served. Without appeal, the system of first instance and final adjudication will be implemented. Judging from the above situation, the cases tried by special procedures do not have the particularity of counterclaim at all, so counterclaim is not applicable to such cases, including: the procedures applicable to the trial of voter qualification cases, the procedures applicable to the determination of citizens' incapacity for civil conduct, the procedures applicable to the restriction of their capacity for civil conduct, and the procedures applicable to the determination of property ownerless cases. 3. Counterclaim does not apply to some personal rights cases based on marriage and family relations. First, counterclaims do not apply to divorce cases. Divorce is an important legal act of the parties. When trying divorce cases, people's courts should not only judge the personal relationship between husband and wife, but also judge the relationship between child support and property, which will have a series of legal consequences. After divorce, although the rights and obligations between husband and wife have been eliminated, the personal relationship between parents and children cannot be eliminated. Therefore, all the relationships involved in divorce proceedings should be judged together, and it is impossible for the defendant to file a new counterclaim. According to the marriage law, the innocent party has the right to claim damages, which is not a counterclaim. If the innocent party is the defendant, the plaintiff can only be asked to compensate for the loss according to the plaintiff's divorce request, and no counterclaim can be made. Second, counterclaims do not apply to cases of maintenance, support and maintenance. Support refers to the responsibility of supporting the elderly; Support refers to the responsibility of supporting minors; Support refers to the responsibility of supporting the same generation. Judging from the meaning of the above three concepts, all the obligations of the parties are legal, and such legal obligations can neither be lifted nor offset, so there is no counterclaim in such cases. According to the provisions of the Criminal Procedure Law, the defendant or his legal representative may file a counterclaim against the private prosecutor in the proceedings, for cases that are handled only after being informed and minor criminal cases that the victim has evidence to prove. However, criminal responsibility should be investigated according to law for cases that were handled only after being informed and minor criminal cases that the victim has evidence to prove, but the public security organ or the people's procuratorate will not investigate them, and the case that the victim files a private prosecution with the people's court according to law cannot file a counterclaim.