Counter-claim Procedures in Civil cases

In our previous article, TNTP provided an overview of counter-claim, including the define of counter-claim, the right to file counter-claim and the statute of limitations for counter-claim. This article expands on that foundation by presenting the legal frameworks governing counter-claim procedures in civil litigation and offering practical guidance for effectively utilizing this legal right.

1.Procedural timeframes for counter-claim filing

1.1 Initial timeline for counter-claim submission

According to Clause 1, Article 199 of the Code of Civil Procedure 2015 (“the CCP”), within 15 days from the date of receiving the case acceptance notice, the defendant is responsible for submitting to the court documents expressing their opinion regarding the plaintiff’s claims, along with supporting documents, evidence and counter-claims (if any). The defendant’s right to file a counter-claim therefore begins when they receive the court’s acceptance notice.

1.2 Statutory deadline for submitting a counter-claim

According to Clause 3, Article 200 of the CCP, the defendants are required to submit their counter-claims prior to the meeting for checking the submission, access, disclosure of evidence and mediation. The CCP does not limit the number of such proceedings that may be conducted, allowing courts to hold multiple sessions. Consequently, certain courts maintain the practice of accepting counter-claims submitted any time before the conclusion of the final meeting.

However, in Section 14, Part IV of Official Letter No. 01/2017/GĐ-TANDTC from the Supreme People’s Court provides the following guidance: “In cases where the court conducts multiple mediation sessions, the first mediation must follow the proper procedure for checking the submission, access, disclosure of evidence and mediation as stipulated in Article 210 of the 2015 CCP. For subsequent mediation sessions, the court shall only check the submission, access and disclosure of evidence if there is new evidence and record it in the mediation minutes”. Based on the guidance, only the initial meeting for evidence submission, access, disclosure and mediation is formally recognized under Article 210 of the CCP.

From this guidance, it appears that the Supreme People’s Court’s direction is to only hold the first meeting for checking evidence submission, access, disclosure and mediation according to Article 210 of the CCP, which may lead courts to reject defendants’ counter-claims if submitted after the first meeting. Any subsequent meetings do not constitute official sessions for these purposes. This leads to the possibility that some courts may not accept the defendant’s counter-claim if it is submitted after the first meeting.

Due to the lack of direct guidance on this matter, TNTP recommends that defendants shall protect their legitimate rights and interests by submitting counter-claims before the first meeting for evidence submission, access, disclosure and mediation.

1.3 Regarding changes or additions to counter-claims

The law and Supreme Court have not provided specific guidance on when and how counter-claims can be modified or supplemented, which poses challenges for judges. However, courts typically handle such modifications by following guidelines similar to those for plaintiff’s claims. This means defendants can modify or supplement their counter-claims when new circumstances arise that have not been considered, following the procedures outlined in Section 7, Part IV of Official Letter No. 01/2017/GĐ-TANDTC.

2.Procedures for filing a counter-claim

According to Article 202 of the CCP, filing a counter-claim follows the same regulations as filing the plaintiff’s initial lawsuit. The process involves several essential steps that defendants must follow to ensure their claims are legally considered and properly processed. These steps include:

• Step 1: Submit the counter-claim request

The defendant must submit a counter-claim request to the court handling the plaintiff’s lawsuit. The request must clearly state the defendant’s claims against the plaintiff, the reasons for the counter-claim, relevant circumstances and any supporting evidence (if any).

• Step 2: Pay the court fee advance for the counter-claim

The court reviews the defendant’s counter-claim to verify its relevance to the main case and compliance with legal requirements. The judge then promptly notifies the defendant of any required court fee advance. Following this notification, the defendant must pay the specified court fee advance.

• Step 3: Acceptance and resolution of the counter-claim

Upon receipt of full payment of advance court fees by the defendant, the court shall proceed with the acceptance of the counter-claim. After the counter-claim is accepted, the court will issue decisions related to resolving the counter-claim.

3.Practical experience related to filing counter-claims

When filing counter-claims in civil cases, several common mistakes can affect whether the claim is accepted. Based on our experience with common reasons why counter-claims are not accepted, TNTP offers the following notes and suggestions:

First, a critical consideration when submitting a counter-claim pertains to compliance with statutory requirements. The court frequently declines counter-claims that fail to satisfy essential criteria regarding proper parties, counter-claim rights, jurisdictional requirements, limitation periods and particularly the acceptance conditions outlined in Clause 2, Article 200 of the CCP. The solution is that the defendant’s counter-claim must clearly relate to the main content of the case, have the ability to offset obligations, or exclude part or all of the plaintiff’s claims or help resolve the case accurately and efficiently.

Second, defendants often miss deadlines for filing counter-claims. Such delays can result in court rejection, putting defendants at a disadvantage in dispute resolution. Based on legal practice, defendants should prepare counter-claims early, submit them on times and follow proper legal procedures. Due to the absence of clear legal provisions about meetings for evidence submission, access, disclosure and mediation, defendants should file counter-claims before the first meeting to protect their legitimate rights and interests.

Third, another common mistake is when defendants fail to provide sufficient evidence to support their claims. Evidence plays a decisive role when courts consider counter-claims and lack of supporting evidence can lead to rejection due to insufficient legal basis. Therefore, defendants must be careful in collecting and preparing all evidence directly related to their claims. This approach not only enhances the probability of the court’s acceptance but also shortens the trial time while safeguarding the interests of all parties concerned.

Fourth, judges sometimes fail to properly follow counter-claim resolution procedures. During their duties, some judges may not strictly comply with regulations on handling counter-claims. This can affect defendants’ legitimate rights and interests while creating additional legal issues to resolve. When defendants disagree with decisions rejecting their counter-claims, they have the right to appeal these decisions. According to Article 502 of the CCP, defendants must submit their appeal within 15 days from when they receive or becomes aware of the decision they believe violates the law.

TNTP is pleased to have presented these comprehensive articles regarding counter-claims in civil cases. We hope these two articles have provided useful information to you. Feel free to reach out to TNTP for a personalized consultation or any further questions.

Best regards,