Research On Civil Lawsuit Withdrawal

Withdrawing a lawsuit has been common in civil litigation system. And it has been an important way of closing a case in China's civil judicial practice. As China's current "Code of Civil Procedure" had some lack of legal provisions on withdrawal, plaintiffs' recalling with arbitrary seriously violated the principle of parties' equal rights. And the substantive review from the court on Withdrawal has caused serious violations to the right of the parties. Especially on non-restrictive re-prosecution after withdrawal, the abuse on withdrawal by the plaintiff and judges in practice, has been seriously affected the stability and efficiency of civil procedure.This paper starts from the concept of Withdrawal, has discussed the three composing elements on Withdrawal, described the jurisprudential basis of the Withdrawal, made compares on Withdrawal proceedings in different countries and an objective analysis of the status and the problems of Withdrawal in China, and finally put forward a concept of sound Withdrawing system.The paper has five parts:The first part is an overview of civil withdrawal system. At first the author defined the concept of withdrawal, and then discussed the subject, object and time of the Withdrawal, followed with analysis on the nature of withdrawal, which is a plaintiffs unilateral action resulting in case closing effect according to the procedural law. The second part is the jurisprudential basis of civil withdrawal system. The author made analysis from four aspects including:procedure subject theory, procedure stability theory, equal rights theory, theory of protecting parties' right to procedure controlling, to provides a theoretical support for Withdrawal. The third part is comparison on Civil Withdrawing System. The author introduced civil withdrawal system from in representative nations of two different legal systems, and made a brief introduction of the Civil withdrawal system in China, which shared similarities with main countries in Common Law System and Continental Legal System, as well as the significant differences and the causes between China and other representative countries. The fourth part is on the status and the problems of current system of Civil Withdrawal in China. The author summed up five main problems existed in our system of civil Withdrawal. The fifth part is the way to perfect the System of Civil Withdrawal. The author proposed six measures under jurisprudential basis and law comparison, in connection with the current status and problems of System of Civil Withdrawing.