关于反诉制度若干问题的思考

就反诉制度而言,我国的民事诉讼立法不够完善,缺乏其必要的规范性。法学界对反诉制度进行了广泛研究,但在诸多问题存有分歧。反诉的主体范围虽有扩大的趋势,但反诉的主体还应是特定的;反诉从性质上说是一种“相对独立的诉”;反诉不同于反驳,二者具有质的区别;二审程序中提出反诉,应适用调解原则。

Reflections Upon Various Issues about the Countercharge System

As to countercharge system, the legislation in China's civil lawsuits is not yet perfect, lacking necessary norms. Although theoretical jurists have made extensive studies about countercharge system, there still exist many divergences on many issues. There is the tendency of expansion of the subjects of countercharge, yet the subjects of countercharge are to be especially designated. Countercharge is by nature a "relatively independent appeal". It is different from refutation, and each is different from the other in nature. When issuing a countercharge in the process of the second trial, the principle of mediation is in preference.