Study On The System Of Withdrawing A Civil Action

The study of withdrawing a lawsuit in foreign countries mainly focuses on its action as a kind of civil act of litigation,so as to study it from the elements,procedures and effects of the action,and pay more attention to the defects of meaning expression in withdrawing a lawsuit.Our study of withdrawing a lawsuit is to locate it as a specific system scattered across different levels of the trial,discussing their respective problems separately,and often dwell on why the principle of disposition has not been fully implemented.This article hopes to combine two perspect of thought to carry on this research.Chapter One: the basic theory of withdrawing a lawsuit.The definition of withdrawal is mainly from litigation behavior in Civil law system;Common law system is mainly from the procedural stage.According to autonomy of will withdrawing a lawsuit is divided into the application for withdrawal,deemed withdrawal and the withdrawal of the agreement,deemed withdrawal reflects the parties negative to abandon the action.According to the diversity of objects of lawsuit,the classification is based on the trial level.The withdrawal is divided into: withdrawing the litigation,withdrawing the appeal and withdrawing the retrial litigation;the former has already covered the procedure of second instance and the retrial procedure.Withdrawal systems are rich and varied,but they lack the idea of internal unity.Hence,the elements in the application of the withdrawal system are lack of binding effect,the scope of the court review is too wide,and the rules of the effectiveness are lack of specific explanations.Therefore,it is necessary to improve this system of withdrawal from two angles of interpretation and legislation.Chapter Two: the legal constitutive requirements of withdrawing a lawsuit.The existing legislation based on the principle of disposition only provides that the party could voluntarily withdraw their claims before the court's decision.The following aspects deserve clarification or improvement: Firstly,the following aspects need to be improved from the time required for withdrawal.First of all,given the respect for interests of defendants,consideration should be given to increasing the requirement of the defendant's consent after entering in the pre-trial preparation procedure,instead of waiting until the court debate is over.Then,the final time of the withdrawal a lawsuit should be changed to before the Judgment is effective.Requirement for subject: withdrawal of the counterclaim generally require the plaintiff agreement,withdrawal of an independent claim also needs the consent of the third party.Secondly,as far as the necessary litigation is concerned,it is necessary for the unanimous consent of the parties to withdraw the suit.When necessary,the litigant may withdraw the case on its own,but notify the other co-litigants who have not appealed in appellate procedure.Withdraw the suit in common litigation is still based on the principle of independence.In the representative action,the representative can withdraw the lawsuit voluntarily.Thirdly,there are some substantive law requirements in the contract of withdrawal,including the ability requirement.The essential requirement is that the parties can dispose of the right of litigation,which the contract of withdrawal can be subject to conditions and deadlines.Chapter Three: how to trial the disputes for withdrawing a lawsuit in court is a problem,a reasonable limit should be set.These questions have been greatly influenced by the principle of state intervention.Firstly,civil law jurisdictions generally concern the act about its validity and invalidity.Our court which handling of withdrawals is focused on the legality of the act,including violations,the trial error of the first instance and the damage about all kinds of interests.The above requirements should establish the principle and the exception.The above-mentioned review should be focused on the withdrawal of the lawsuit for retrial.As long as it does not involve the typical damage of interest such as false litigation,the court generally should not necessary to examine the above contents.In judicial practice,the court does so.Secondly,according to the requirements of state intervention,the courts should not directly grant any application for withdrawing a petition from a litigant in some cases,for example,some cases in public interest litigation or in family cases.However,this restriction is not absolute.Public interest litigation withdrawal is still subject to the discretional right of the court,as long as the withdrawal is not concluded after the court debate.Chapter Four: the withdrawing of an action is a legal act including meaning,which exists problems such as:ineffectiveness,the meaning indicates the flaw and the remedy to the flaw of meaning.It should be made clear that the act of withdrawing a person for whom there is no civil capacity is invalid.If there is a flaw in the act of withdrawal,such as the party being oppressed or being fraudulent,the party may revoke the act;after that,if the appeal cannot be reinstated,the parties may apply for a retrial of the withdrawal decision.Thirdly,the trial of the withdrawal contract should be tried in this case,the plaintiff should prove the fact that the withdrawal contract is effective,and the court makes the judgment for the depute of the contract of withdrawal,and our country still makes the decision by way of adjudication,This kind of ruling should give the parties the right to repeal.Chapter Five: the effect of withdrawing a lawsuit mainly includes procedural and entity effects.First,the most important effect is the prohibition of reinstatement the suit.This effect should include these requirements that its subject only applies to plaintiffs,after the final judgment of the entity is made.Except for the standard elements for prohibiting repetition of the lawsuit,the same interest of action is also required.The prohibition of further retrial should be made on the exception of the family lawsuit.In some cases,the irregular party may also be re-litigated a case.Second,the elimination scope of the lawsuit brought by the withdrawal of the lawsuit is only containing the claim,does not involve any defense.If right of offset is exercised outside the litigation while the lawsuit is in progress,it still has the substantive legal validity even if the lawsuit is withdrawal.Thirdly,the dismissal of the limitation caused by the withdrawal of a lawsuit disappears.This article holds that the general we should respect the requirements of the General Provisions of Civil Law.Fourth,the contract of withdrawal and the withdrawal of appeal have their special effects.Whether prohibition of re-suing is applicable is depending on the agreement between the parties in the contract of withdrawal,and the plaintiff who does not withdraw the contract of default has the obligation to compensate the defendant.Within the period of appeal,the right to appeal again shall not be lost.The decision to withdraw the appeal shall take effect no later than the expiry of the appeal period.Chapter Six: withdrawing part of an action in our legal system is a common phenomenon.It happens when plaintiff puts forward complicated claims or single claim,the later involves the definition of the object of action and the affirmation of part of claim.Withdrawing part of a single claim contains withdrawal of interest claim and the part of divisible claim.Only admitting the theory of part lawsuit,the withdrawing part of a single claim can be discussed.The court should inquiry the genuine will of the litigant and determine weather the party want to withdraw part of a claim or reduce part of a claim,avoiding the party abuse of right.Limitation of Action is not interrupted after withdrawing part of a claim.