Study On The System Of Withdrawing A Civil Action

As an important system in civil litigation, withdrawing an action is widelyapplied in judicial practice. It is not only an important embodiment of the party'sexerting his litigious right, but also an important means that the court concludes alawsuit. Whether the system is scientific and reasonable concerns the guaranteeing ofthe parties'legitimate rights and interests and the maintenance of normal litigationorder. However, due to the deviation in the litigation mode and values, many problemsemerge in the operation of the current system of withdrawing an action in our countryin practice, so reform is just on the agenda. This article makes a shallow study on thesystem of withdrawing an action and puts forward initial ideas for the perfection ofthe system in our country.Except the preface and the conclusion, this article is divided into four chapters.Chapter one: outline of the system of withdrawing an action. This chapter mainlymakes a fundamental explanation of the system of withdrawing an action. It points outthat the concept of withdrawing an action can be used in both a broad and narrowsense. The study of this article is confined to the narrow sense, that is, the plaintiff'swithdrawing his action. As far as its nature is concerned, withdrawing an action,which does not involve the dispute of the parties'substantive rights and obligations, ispurely procedural. For a deeper understanding of the concept and nature ofwithdrawing an action, it is necessary to make a distinction between withdrawing anaction, abandoning substantive rights and abandoning claims. Finally, this part statesthat the jurisprudence basis of establishing the system of withdrawing an action is oneof the basic principles in civil litigation-the principle of disposing.Chapter two: investigation of the system of withdrawing an action in foreigncountries and thinking about the values of constructing the system. This chapter firstintroduces the legislation in main countries of the two legal families, and then makescomment in four respects: the starting, forms, conditions of entry into force and legaleffects of withdrawing an action. Through the investigation of foreign legislation, theauthor demonstrates the basic values legislation should pursue while constructing thesystem of withdrawing an action –justice, democracy and stability of procedure,explaining that these values correspond with the principle of disposing.Chapter three: the current system of withdrawing an action in our country and itsdefects. This chapter makes an analysis of the current legislation and draws anconclusion that in the current system, the power of the court is so strong that itimposes excessive intervention on the party's withdrawing an action;the two partiesenjoy unequal litigious rights and the right of the defendant is seriously ignored.These lead to the imbalance of judicial power and the parties'rights as well as rightsof different parties. The current system does not control the legal effects ofwithdrawing an action, either. These defects make it difficult to realize the goal ofjustice, democracy and stability of procedure. Moreover, the current system is notscientific and delicate in some details. The author expounds the defects of the currentsystem in seven respects.Chapter four: the perfection of the system of withdrawing an action in our country.In accordance with the defects of the current system, the chapter argues that weshould use strengthening the principle of disposing and implementing the principle ofequality as guiding principle when we try to perfect the current system. The authoroffers some suggestions for the reform of the current system in three respects, hopingto construct a scientific and reasonable system which keeps pace with thedevelopment of the market economy, so that it can fully play the role of guaranteeingthe parties legitimate rights and interests and safeguarding judicial justice.