The Study Of Plaintiff’s Right To Withdraw The Prosecution In The Appeal

Dropped as the parties the right to dispose of a lawsuit behavior, is a reflection ofthe autonomy of the parties in the proceedings. Therefore, in order to respect andshow the dominant position of parties in civil litigation, Either in Chinese civillitigation theory or in the other country’s of the world, The system of withdrawal is anextremely important piece of litigation. In China, due to the insufficient and imperfectlegislation, our system of civil withdrawal has many flaws and shortcomings, amongwhich the problem whether the plaintiff enjoying the right of nolle prosequi on theoriginal judgment in the second-instance trial has long been a controversial topic inboth theory and judicial practice sectors. Either the updated promulgation andimplementation of the new code of civil procedure in2012or the previously old law,makes no explicit provision for this front issue. In view of this, Basing on two casesof judicial practice in a number of procedural issues which raised during the trials, thisarticle attempts to carry out a comprehensive and systematic discussion on whetherthe plaintiff enjoying the right of nolle prosequi on the original judgment in thesecond-instance trial, in order to make contribution for perfecting Chinese system ofcivil withdrawalin future legislation and guiding judicial practiceIn addition to the introduction and conclusion, this paper is divided into thefollowing four sections, a total of about25,000words:The first part is " raising question——two case-law thinking." This section startsfrom two judicial practice cases in the first trial arising from the trial the plaintiffapplied for a nolle prosequi in raised a number of procedural issues, and points outseveral different views and opinions existing in judicial practice, then the legal issuebehind the present case, namely whether the plaintiff enjoying the right of nolleprosequi on the original judgment in the second-instance trial.The second part is the "fundamental problems of the system of civil withdrawal."After all，The problem whether the plaintiff enjoying the right of nolle prosequi on theoriginal judgment in the second-instance trial is raised， basing on the present condition of the system of civil withdrawal in our own country。In order to exploreand analysis system，we no doubt need theory to do support. This part, the author ofthe withdrawal system of basic theory, China’s system of civil withdrawing legislationsituation and civil in the second instance the possibility of withdrawing the judicialdifficulties facing prosecution in the real world for a simple introduction andelaboration, in response to this question below the perfect strategy to providetheoretical and practical basis.The third part is the " comparison of legislation on the plaintiff’s right of a nolleprosequi in the second instance in civil trial outside civil law system". The jade maybe refined from stones from other hills,. This portion mainly introduces civil law inGermany, and Japan and China’s Taiwan-related legislation, through a comparativeanalysis of extraterritorial legislation, to improve the system of withdrawinglegislation in China, to provide reference and consulting for solving the problem onthe plaintiff withdrawing in the second-instance trialThe four part is "in the second instance of China’s civil trial plaintiff’s right ofnolle prosequi to the motherland". This part，Firstly the author simply combs thecontroversy views on the problem of plaintiff withdrawing in the second-instance trialat present in china’s academic field，and makes some simple comments and studiesfrom academic perspective，affirming the desirable part，discussing the unwisepart。Secondly, the author put forward the views that the plaintiff should enjoy theright of nolle prosequi on the original judgment in the second-instance trial, whichalso should based on the perfect ion some supporting system designed to achieve onsecond trial withdrawn sued right of limit applies. Finally，from system level，theauthor made a number of specific measures designed to build due process of theprosecution right of the plaintiffs withdrawal in the second instance of China’s civiltrial.