Research On The Issues Of Withdrawal Of Prosecution Of The Second Instance

The issue that civil plaintiff can withdraw the prosecution in the second instanceis the topic of this article. The plaintiffs have right to withdraw the civil prosecutionas soon as the plaintiffs sue to the court, which is the contents of the right ofdisposition. But we can not find when the right to terminate in China’s civil procedurelaw, which leads to the controversy on this topic in civil trial practice. Thereforetheoretical study on it is necessary to find the answer.The theories of civil procedure think that the plaintiffs have right to withdraw thecivil prosecution throughout the proceedings, which is based on the contents of theright of disposition and litigation, and the end of proceedings is when judgment hasbeen determined. Thus civil plaintiff can withdraw the prosecution when judgmenthas not been determined, including the case in the second instance.However, as the law is divided into natural law and positive law, theoreticalstudy and legislation are different, the latter often considers more actual factors andvalues based on the reality of justice. Law norms lag and ambiguity in some cases areactually inevitable. Legislators consider law norms should leave room for thediscretion of the judge, to achieve the law’s role in regulating social relations better. InChina, the current law does not prohibit that the plaintiffs withdraw the civilprosecution in the second instance nor be clearly defined; in fact, the civil court ofsecond instance has the discretion whether to allow the plaintiffs’ request onwithdrawal of prosecution.This paper argues that the legislators have two choices on the problem of theplaintiffs’ withdrawal of the prosecution: one is that the law prohibits the withdrawalof the prosecution after the judgment is given; the other is that the law allows thewithdrawal of the prosecution after the judgment is given, but prohibits a sameprosecution again. Our current legislation is tend to the first choice, and gives thejudge discretion to make the final decision on whether allow the plaintiffs’ applicationof withdrawal of prosecution. Thus, the rationality of China’s current legislation choice and how to exercise discretion on the specific cases are also worth studying.This paper argues, nevertheless, when the time is ripe, when the civil actionwithdrawing system becomes more perfect, it should be clear that the plaintiffs’application of withdrawal of prosecution is allowed in the second instance.Because of the constraints of both space and author’s capacity, this article onlyelaborates the controversy on this topic of civil trial practice and Civil Procedure lawacademia, and as the basis of the civil action withdrawing system, compares china andthree continental legal system jurisdictions(German, Japan and Taiwan) on this topic.Finally, the author puts forward the views and suggestions on legislation andjudicature.