Research On The Issues Of Withdrawal Of Prosecution Of The Second Instance

The withdrawal of prosecution of the second instance refers that the plaintiff of the first instance makes an expression to the court of second instance to make the withdrawal of the trial of the request to prosecute.The understanding and use of the meaning of the withdrawal in Academics,judicial practice and the provisions of law,judicial interpretation is not consistent.In order to avoid the ambiguity of the use of the concept of polysemy,in this article,the withdrawal only refers to the withdrawal of the prosecution,so the second instance withdrawal refers to the withdrawal of prosecution of the second instance.Can the plaintiff apply for withdrawal in the second instance?This has caused quite a controversy in the judicial practice.The views of supporting and denying the withdrawal of prosecution of the second instance are tit for tat,while negative view is in the dominant position.The reasons for allowing the withdrawal of prosecution of the second instance include:(1)The civil litigation is to resolve the disputes between equal subjects,the court should respect the autonomy of the parties;(2)The right of withdrawal is a procedural right and the party is free to dispose of it;(3)According to Article 174 of the Civil Procedure Law,the court of second instance can allow the plaintiff of the first instance to withdraw the prosecution;(4)The withdrawal of the provisions of Article 191 of the Opinions of the Civil Procedure Law shall be understood as the withdrawal of the prosecution.The reasons for denying the withdrawal of prosecution of the second instance include:(1)Civil procedure law is public law,and the law is prohibited without authorization;(2)Any litigation is prohibited;(3)According to Article 173 of the Civil Procedure Law,the party can only apply for withdrawal of the appeal in the second instance;(4)The withdrawal of the provisions of Article 111 of the Opinions of the Civil Procedure Law shall be the withdrawal of the appeal;(5)Allowing the withdrawal of prosecution of the second instance is contrary to litigation efficiency;(6)Allowing the withdrawal of prosecution of the second instance is contrary to the rights of equal protection of the parties.I support the withdrawal of prosecution of the second instance.I will make a brief response to the negative views.Allowing the withdrawal of prosecution of the second instance has a legal basis for the following:(1)Allowing the withdrawal of prosecution of the second instance is to maintain the basic requirements of the principle of discretion;(2)Allowing the withdrawal of prosecution of the second instance is to protect the basic requirements of the procedural position of the parties;(3)Allowing the withdrawal of prosecution of the second instance is to improve the basic requirements of the withdrawal system;(4)Allowing the withdrawal of prosecution of the second instance is the basic requirement to respond to practical problems.At the same time of allowing the withdrawal of prosecution of the second instance,it is subject to certain restrictions.The legal basis for restricting the withdrawal of prosecution of the second instance is mainly to consider the interests of the defendant and the legal effect.The main way to limit the withdrawal of prosecution of the second instance is to give the defendant the right of consent of the withdrawal of prosecution of the second instance and to restrict the effect of the law.When discussing the specific system of the withdrawal of prosecution of the second instance,the author mainly elaborates the constituent elements of the withdrawal of prosecution of the second instance,the examination of the court's review of the withdrawal of prosecution of the second instance and the legal effect of the withdrawal of prosecution of the second instance.The elements of the withdrawal of prosecution of the second instance are:(1)In the second instance,the plaintiff files an application for withdrawal;(2)the defendant makes the expression of the consent;(3)The plaintiffs withdrawal request and the consent of the defendant shall be made to the court.The court should only carry out formal examination of the withdrawal of the plaintiff,as long as the composition of the withdrawal of prosecution of the second instance complies with the requirements,it should be allowed to withdraw,no discretionary space.The requirements of the withdrawal of prosecution of the second instance of the provisions of "Civil Procedure Law Interpretation" are more stringent.However,through the analysis of the case of the China Judgments Online in the past two years,it is found that the status quo of the practice is not as pessimistic as the provisions presented.The legal effect of the withdrawal of prosecution of the second instance is that the litigation system is eliminated and no further prosecution is required.Prohibition of repeated prosecution is not for resentment reasons,but the litigation efficiency and procedural stability are more considerate.In the second instance,the plaintiff often reaches a settlement agreement with the defendant and applies for withdrawal.The settlement agreement is outside the settlement.The dispute arising from the settlement agreement is not subject to the prohibition of reconsideration.