Study On Civil System Of Action Withdrawal In China

The civil system of action withdrawal is essential in law of civil procedure. It concerns several important theories and doctrines among which the most important three are: principle of disposition, doctrine of equal litigious rights of the parties, and theory of procedure stabilization. Besides, it reflects the contrasts and integrations between court's intervention abiding by its function and power and the parties'free disposition rights, the rights and obligations of plaintiff and those of defendants, and protection to parties'rights and interests and insurance to procedure stabilization. In Chinese practice, withdrawing an action is an important way to end a case. However, it has some problems in both theory and practice because of academic studies lacking and legislation defects. As the reform of"Civil Procedure Law of the People's Republic of China"is on schedule, the action withdrawal system shall be reformed as well.With the concept introduction as the beginning, this essay defines the nature, expounds the legal principles, and comparatively studies the same systems in some other countries and Taiwan Province of China. On the basis of above, this essay concludes the advantage provisions which can be regarded as our example. In the mean while, this essay objectively analyzed Chinese status, and then provides some advice on its reform. This essay is composed of four chapters. The first chapter is the basic introduction to the civil system of action withdrawal. In this chapter, the author mainly expounds the concept and nature of this system in order to correctly understand its spirit and essence. In the introduction to the concepts, the author lists the popular ones, and gives comments and contrasts. Then, the author defines the concept by herself. Besides, several similar concepts from other countries and Taiwan Province of China are introduced as well. All these lead to better understanding to this system.In the following, the author defines the nature of this system. In this part, three schools are set forth: litigation agreement theory, will declaration theory, and judicial act theory. The author analyzes and criticizes the former two theories, and explicitly stands by the judicial act theory. What's more, the author gives further analysis on this system in the view of judicial act. The second chapter is about the legal principles of this system. The concerned three are: principle of disposition, doctrine of equal litigious rights of the parties, and theory of procedure stabilization. When introducing every principle, the author takes the following order: concepts, contents, foundation, demands for action withdrawal system reform. This part is the legal basis of system reform.The third chapter focuses on the comparative study of this system in other countries like England, the U.S.A, Germany, France, Japan, and Taiwan Province of China. On the basis of comparative study, the author concludes the common spirit and regulation which can be the experience and example of Chinese reform in relative fields.The fourth chapter is the key par of this essay. In this chapter, the author analyzed the status of China, points out the problems of this system in the view of both theory and practice. In the following come the reform suggestions: in the theoretical field, concerned principles shall be completely restudied to provide correct guideline for legislation; in the legislation field, accurate concept shall be adopted, similar concepts be distinguished; time span for action withdrawal shall be expand to give more protection to the parties free disposition rights; the courts'substantial investigation shall be abolished, courts'intervention shall be restricted into a scope as small as possible; the defendants shall be entitled more rights and more protections to keep balance between the two parties; and the consequence of action withdrawal shall be prescribed more specific and strict. The action limitation shall not be re-accounted and the re-commencement of an action shall be strictly restricted when the former case is ended in the way of action withdrawal.