Counterclaim In The Civil Procedural Law – Comparative Law Issues

This study analyses the issue of the counterclaim in the Romanian civil procedural law and in some other European states, namely Spain, France and Belgium. The main objective of the study is to find similarities and differences of this incidental claim in the legislation of several European states. For this purpose, we analysed the Codes of Civil Procedure for each state in a comparative regard. Also, the purely legislative matters were correlated with juridical opinions in order to have a complex analysis. The counterclaim is an incidental claim of heightened importance, it is a reaffirmation of the principle of equality of the parties, both plaint iff and defendant, in the civil action. Taking into account that the doctrine gives to counterclaim the character of a real civil action, and that the practice confirms this aspect by the importance given to this request, its importance is undeniable, despite the stipulation brought by the New Code of Civil Procedure according to which the counterclaim is not mandatory in all cases. We consider that given the increased importance of the counterclaim, it should be mandatory in all cases and not optional, since its absence admits the interpretation that the main plaintiff agrees with the points raised by the defendant by his contestation (through counterclaim).