Counterclaim is one of the defendant’s rights against the plaintiff or any party with related rights and obligations who has an independent claim. To exercise the right to file a counterclaim, the defendant must submit it before the meeting to examine the submission, access, disclosure of evidence, and mediation.(1) However, in addition to meeting the time limit for filing a counterclaim, the question arises: Should the statute of limitations for filed lawsuits apply to the defendant’s counterclaim?
In practice of dispute resolution, it has revealed differing views on this issue, leading to inconsistencies in court decisions and affecting the legitimate rights and interests of the parties involved. Specifically:
- The first view holds that a counterclaim is also considered a lawsuit; therefore, the statute of limitations for filing a lawsuit must apply in the same manner as it does for a lawsuit.
- The second view holds that a counterclaim is not a lawsuit but only follows the procedural framework of a lawsuit due to its similar nature; hence, the statute of limitations for filing a lawsuit should not apply.(2)
To address the disagreement between these views, on November 25, 2021, the Council of Judges of the Supreme People’s Court adopted Precedent No. 44/2021/AL, which clarifies the determination of the statute of limitations for filing a counterclaim. Precedent No. 44/2021/AL provides a clear legal resolution: In a civil case, if the defendant has a counterclaim against the plaintiff, or if a person with related rights and obligations has an independent claim, the Court must treat the counterclaim as equivalent to initiating a lawsuit. As such, it must comply with the statutory provisions regarding the statute of limitations for initiating lawsuits. This interpretation is grounded in the provisions of both the Civil Procedure Code 2004 and the Civil Procedure Code 2015. A counterclaim is not part of the plaintiff’s original claim and could be resolved as an independent case; resolving a counterclaim within the same proceeding is intended to achieve a more efficient and accurate resolution. Since a counterclaim constitutes an act of initiating a lawsuit, it must adhere to the legal provisions governing the statute of limitations for filing lawsuits. Therefore, if a counterclaim is raised and a party to the case requests the application of the statute of limitations, the Court is obligated to assess whether the counterclaim falls within the statute of limitations to ensure compliance with the law.
Comprehensively reviewing the provisions of the Civil Procedure Code 2015, it is evident that Clause 4, Article 72 of the 2015 Civil Procedure Code clearly stipulates that, for counterclaims, the defendant has the rights and obligations of the plaintiff as prescribed in Article 71 of the Civil Procedure Code 2015. At the same time, Article 202 also stipulates that the counterclaim procedure is carried out in accordance with the provisions of the Civil Procedure Code 2015 governing the plaintiff’s lawsuit procedure. When exercising the right to counterclaim, the defendant is also obliged to pay the advance court fee at the first instance, except in cases where the plaintiff is exempted or not required to pay the advance court fee.(3) In particular, in cases where the plaintiff withdraws the entire claim or has been properly summoned for the second time but remains absent without a valid reason and does not request a trial in absentia, the defendant becomes the plaintiff, and the plaintiff becomes the defendant, provided the defendant does not withdraw or only partially withdraws the counterclaim. (4) Thus, the provisions of the Civil Procedure Code 2015 indirectly establish that a counterclaim is also a request to initiate a lawsuit. Therefore, applying the statute of limitations for filing a lawsuit to the defendant’s counterclaim is appropriate.
In summary, the defendant’s counterclaim is essentially a request to initiate a lawsuit. As such, the provisions of the law on the statute of limitations for filing a lawsuit remain applicable. When participating in the dispute resolution process, the parties should carefully consider applying the legal solution outlined in Precedent No. 44/2021/AL to protect their legitimate rights and interests effectively.
See more:
1/ What foreign entities need to know when filing a business and commercial lawsuit in Vietnam?
2/ The issue of statute of limitations for lawsuits in intellectual property disputes
3/ Statute of limitations and legal consequences regarding the unlawful employment of foreign workers
Disclaimers:
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