Study Of The System Of The Civil Withdrawing Charges

Civil withdrawal is an act of procedure that established by the plaintiff to the court, which aims to withdraw the suit.Under the market economy system, as a way to end a suit, withdrawal has been widely used in the judicial practice, especially with the increasing of litigation and the pressure of the judge is becoming more and more, the rate of withdrawal of suits is always high. However, contrast to the judicial practices, the legislation is conservative and the blank of the theory conflicts with the need of judicial practice. The expression of the civil withdrawal by the litigation lasts for decades. Until the judicial interpretation about the Civil Procedure Act was issued, there were some supplementary provisions to the withdrawal system, but the law is still conservative. The legislation of civil withdrawal is imperfect, the theoretical research is immature, which is conflicts with the radical judicial practice, leads to the confusion and dilemma.The dissertation starts from the concepts of civil suit withdraw, clarifying the concept among the withdrawal and other relevant concepts, and then, analyzing the problems of the system from the two angles of legislation and practice, and tries to do some exploration on the improvement of the existing system on the basis of the comparison among Chinese civil withdrawal actions and that of both common law and civil law system. 2 This paper consists of five parts.The first part: The comparative study on the concepts of civil withdrawal. This part summarized the definitions to the civil withdrawal by scholars of academic area and then analyze accordingly, summarize the differences between civil withdrawal and appeal and claims withdraw, and define the concept, and then analysis the nature of withdraw, which is a plaintiffs unilateral procedural action.The second part: The analysis of the legal principle of the civil withdrawal system. The chapter demonstrates that a reasonable withdrawal system should be set up that based on the three principles: the coordination of the right of action and the stability of the procedure; the coordination between the party’s right of disposition and the court’s judicial power; and the achievement of the equality of the two parties. And the principles will providing a solid theoretical foundation for the improvement of civil withdrawal.The third part: A comparative study of extraterritorial civil withdrawing system. This part investigates the civil withdrawal system in Britain, the United States, Japan and German. And then concludes the common characteristics of their civil withdrawal system, to find out the gap between our country and other countries.The forth part: This part analyzing the civil withdrawal system from the two angles of legislation and practice, to find out the defects it has in the legislation and judicial practice. This part can be further divided into two parts. Firstly, the analysis of our country’s legislative regulations, and then to find out that the period of the plaintiff to exercise the right is unreasonable, the effect of withdrawing is unclear,and so on; secondly, the judicial status of civil withdraw system, including the operation during the procedure of the first instance, procedure of second instance and the supervision procedure.The fifth part: The suggestions to improve the civil withdrawal system of our country. This part can be further divided into two parts. Firstly, perfect the legislation of civil withdrawal, including when to exercise the right of withdrawing, submit the withdrawing application in writing, and then clearing the legal effect of civil withdrawing. Secondly, emphasize the balance between the disposition of the parties and the judicial power of the court, ensuring the equality of the two parties.