我國反訴制度新發展的價值論檢視

近年來，我國反訴的實踐與理論出現了一些新發展。一方面，實踐中允許對惡意本訴直接提起反訴、禁止對訴訟擔當人提起反訴，也出現了無牽連反訴和預備反訴等反訴形態；另一方面，有學者呼籲確立強制反訴制度。以上有關反訴實踐與理論的新發展，有必要在合理性上接受檢視。從構建我國民事訴訟法學自主知識體系的要求出發，可以共識性較高的民事訴訟程序價值論作為檢視反訴新發展的合理性標準。對民事訴訟價值論的運用應按照程序公正價值、程序工具價值和程序效益價值的位序展開。經檢視，對惡意本訴直接提起反訴符合民事訴訟程序價值，可以接受；一概禁止對訴訟擔當人直接提起反訴不符合民事訴訟程序價值，可視具體情況解除部分限制；特定情形下的無牽連反訴和預備反訴符合民事訴訟程序價值要求，可予認可；強制反訴偏離民事訴訟程序的正當性價值，應緩議。

In recent years, both the practice and theory of counterclaims in China have witnessed several new developments. On the one hand, practice has permitted the filing of counterclaims directly against malicious principal claims and has prohibited the filing of counterclaims against procedural representatives, while new forms of counterclaims have also emerged, such as unrelated counterclaims and contingent counterclaims; on the other hand, some scholars have called for the establishment of a compulsory counterclaim system. These developments in the practice and theory of counterclaims warrant careful scrutiny as to their reasonableness. From the perspective of constructing an autonomous body of knowledge in China’s civil procedure scholarship, the relatively widely shared value theory of civil procedure may serve as an appropriate standard for assessing the rationality of these new developments. The application of civil procedural values should proceed in accordance with an ordered sequence consisting of the value of procedural justice, the instrumental value of procedure, and the value of procedural efficiency. Upon such examination, allowing counterclaims to be brought directly against malicious principal claims is consistent with the values of civil procedure and may be accepted; a blanket prohibition on filing counterclaims against procedural representatives is inconsistent with those values and may be partially relaxed depending on the circumstances; unrelated counterclaims and contingent counterclaims in specific situations satisfy the value requirements of civil procedure and may be recognized; by contrast, compulsory counterclaims deviate from the value of procedural legitimacy and should therefore be approached with caution.