On The Legitimacy Of Prohibition Of Prosecution After Withdrawing The Prosecution In The Appeal

Article 338 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China clearly stipulates that the plaintiff shall not repeat the prosecution of the same claim after the second instance is withdrawn.Behind this provision is the trade-off between the value of the legislator,and the more critical issue is that the nature of the second instance's withdrawal of the prosecution of the prohibition of the re-issue is the limitation of the parties' exercise of the right of action.In modern society,the limitation of legislation on a right should be very cautious,and the restriction on the fundamental right of human rights should be fully discussed.This article explores the limits of litigation rights with the title of " On the Legitimacy of prohibition of prosecution after withdrawing the prosecution in the appeal.”The full text of a total of 38,000 words,the main structure is divided into the following three parts:The first part of the second instance to withdraw the prosecution of the prohibition of prosecution justification.On the basis of analyzing and summarizing the present situation of the second instance of the second instance of the second instance,the author draws the dilemma of the second instance of the second instance to withdraw the prosecution.By comparing the system with the extraterritorial legislation,it is concluded that there are different legislative paths for the issue of reconsideration of the second instance.The legitimacy of the system is derived from the analysis of the legitimacy of legitimacy.The second part of the second instance to withdraw the prosecution of the prohibition of prosecution basis.This part analyzes the interests of the second instance of the second instance of the second instance,which is the interest of the second instance.From the nature of the essence and set the rules to consider the second instance to withdraw the prosecution of the prohibition of prosecution,the second instance to withdraw the prosecution of the right to prosecute the right: to prevent the plaintiff abuse of the right to protect the interests of the defendant,which is a precautionary mechanism;Played a role in saving the country's judicial resources,but the value of litigation efficiency is not the second instance to withdraw the prosecution of the right to prosecute the legitimacy of the basis.The design of the system is consistent with the purpose of the multi-civil litigation in our country,which reflects our country's emphasis on the judicial idea of the procedure control.The system is the judicial concept of our country A projection,this consistency is one of the manifestations of its legitimacy.The third part of the second instance to prosecute the prohibition of prosecution of the legitimacy of the protection.This part of the second instance to withdraw the prosecution of the formal basis for the prohibition of prosecution,the specific design of the system put forward more operational recommendations.Emphasizing that the judge should be in a neutral and objective position in the second instance,and fulfill his obligation of interpretation.In reviewing whether the plaintiff's second suit retracts the suit,whether it belongs to the same lawsuit,the examination mode and the examination order should be based on the mechanism of protection of the defendant's interests.And should divorce the case of marriage and other identity cases and the desirable cases of the parties from the prohibition of retrial system,both of which have the legitimacy and necessity of allowing retrial.