Efficacy Of The Settlement Agreement Reached In The Second Trial Of Civil Procedure

In the trial of second instance, a settlement agreement has been reached by both parties through democratic negotiation based on the principle of autonomy of will. The second instance is closed when appellants withdraw the lawsuit. Hereafter, if one party refuses to perform or partly performs the duties stipulated in the agreement, the other party may apply for compulsory enforcement. However, whether the compulsory enforcement should be carried out in accordance with the judgment of first instance or the settlement agreement reached in second instance is still controversial in theoretical and practical circles. The source of their divergence lies in the different definitions on nature and validity of settlement of action. Key points in adjudication of the Second Guiding Case issued by the Supreme People’s Court have explained this problem from the legislative point of view and thus play an important role in practice.From the perspective of the Second Guiding Case issued by the Supreme People’s Court, this paper aims at discussing the nature and validity of settlement of action based on an analysis of the case, supporting the theory of "one behavior bearing two features" which admits the settlement agreement has private law characters as well as litigation characters, and reconstructing the legal validity of settlement agreement in the context of procedural laws on the fundamental purpose of resolving disputes. In addition, starting from "judicial confirmation", the paper establishes the "public law solution" of settlement of action from three steps which are the parties application、judge explanation、judicial review, and provides some feasible suggestions on legislation to solve the problems in it, thereby maximizing the functions of settlement of action in practice.