Study On The System Of Withdrawing Prosecution In Civil Trial Of Second Instance

Has been, scholars on whether in civil procedure of second instance in the prosecution to withdraw controversial, in judicial practice, practice is also different, between the various courts often appear the phenomenon of the different codefendant, once people hot conferences and criticized. On February 4, 2015, the Supreme People's Court on application < the People's Republic of China that procedure law > interpretation "(hereinafter referred to as the" Xinmin v. interpretation "), the formal implementation, interpretation of the specified in Article 338 allowed in civil procedure of second instance to withdraw the prosecution. Since then, the judicial practice have a unified scale. However, looking back at the whole judicial explain more than 500, only with a provision of civil second instance to withdraw the prosecution made provisions, and no to the second withdraw prosecution elements, procedure and the legal effect of the detailed provisions. The lack of operation, the lack of operation, even if the practice departments stretched and the parties especially the defendant's litigious rights guaranteed by the poor. Hinder the benign operation of the system of withdrawing prosecution in civil procedure of second instance. Therefore, the theoretical research and practical reflection on the system of withdrawal of the second trial of second instance should be the proper meaning of the current civil judicial reform. Firstly from civil second instance withdraw prosecute concepts of depend on the traditional theory of civil law, law relationship with German and Japanese civil withdrawal system and our country Taiwan civil withdrawing system, comprehensive judgments in our country civil second instance to withdraw the prosecution system present situation and the flaw, in order to perfect our country civil second instance withdraw prosecution system is helpful.In addition to the full text of the introduction, a total of four parts:The first part is an overview of the withdrawal of the prosecution system of second instance. First, unifies the Chinese and foreign scholars has conducted the research to the definition of the prosecution to withdraw the, clearly define the second instance to withdraw the prosecution concept, distinguish the second instance to withdraw prosecution of charges and related concepts; secondly, from the perspective of the civil procedure law, basic theory and comparative method of second instance can withdraw the prosecution of legitimacy are analyzed. Third, from the concept of the withdrawal of the second trial and the relevant judicial interpretation of the provisions of the withdrawal of the second trial to extract the constitutive elements; finally, the use of litigation theory of the second trial to withdraw the prosecution was studied.The second part is the comparative study of the withdrawal system of the second instance. This part mainly introduces the and of the Civil Procedure Law of our country has larger parallels that of Japan, Germany and China's Taiwan to withdraw prosecution system in the legislative status, analyze and compare the similarities and differences between their system design, in order for our country perfecting the second instance to withdraw the prosecution system to provide the necessary reference.The third part is the review of the system of withdrawal of the second trial in our country. First of all, from the current laws and judicial interpretations to examine the second withdrawal of prosecution system, there is a defect of the single legislation; secondly, according to a second instance of a concrete analysis of the current legislation to withdraw prosecution system existing problems, main problems are: to the second withdraw prosecution conditions, procedures and legal effects of the lack of detailed provisions.The fourth part is the suggestion of perfecting the system of withdrawal of the second instance in our country. Firstly, perfecting the second instance to withdraw the prosecution of the elements, including clear of second instance withdraw the prosecution filed, giving the agent instance withdraw the right to sue, clear of first instance and the second instance to withdraw the prosecution time; secondly, perfecting the second instance to withdraw the prosecution procedure, including clear the court of second instance to withdraw the prosecution deadline for review and examination way; finally, perfecting the second instance to withdraw the prosecution of legal effect, including clear limitation of action is calculated, litigation costs by who bear and to prohibit to appeal reflection.