Study Of The System Of The Civil Withdrawing Of Second Instance

Withdrawal of the suit is a kind of litigation act that plaintiff applies to the court for revolving the action has been set up and stopping the proceedings.As an important part of the withdrawing system,the withdrawal of the second instance procedure is an important way for the original plaintiff to exercise the right of disposition.However,it is easy to find out that the provisions of the withdrawing system have not changed much,and the provisions on the withdrawal of prosecution in the second instance are very vague.In judicial practice,the various handling methods of the judge lead to the chaos in practice.In view of this,in February 4,2015,The interpretations of Supreme People's Court on the application of the PRC Civil Procedure Law was announced,according to article 338,which stipulates that the plaintiff in the trial procedure can withdraw the prosecution.The law gives plaintiff the rights to drop a lawsuit in the second instance,not only make up for the loopholes of solving the second instance in judicial practice in the legislation of the civil procedure law,but also a great significance to solve the processing unified problems of withdrawing prosecution.Meanwhile,new problems behind the system should be noticed when the legislative progress be affirmed.For instance,the court allowed the plaintiff to withdraw the prosecution and the withdrawal of the appeal application at the same time,caused a contradiction between first trial valid and invalid;the unknown license way of the other parties may lead to delays in the proceedings and unified treatment;the regulation of “Allowed”violates the original intention of the establishment of the system of withdrawing prosecution in the second instance;the issue of prohibition of prosecution after parties withdraw litigation and so on,still need to be further improved.In this paper,the author firstly illustrate the connotation of civil trial withdrawing prosecution,and then summarize different definitions of the withdrawing prosecution system in the second trial,draw a connotation of civil trial withdrawing prosecution in this article by comparing and analyzing these concepts.Based on the definition of concept,elements and the legislative purpose and effect of the system have been mentioned and compared with the first withdrawal and withdrawal of the appeal,in order to deepen the understanding of the system.Secondly,pointing out the deficiencies in the system of our country at the present stage from two aspects of legislation and judicature,such as the lack of rationality of banning prosecution,the way of the other parties permit is unclear,subject confusions about the burden of litigation costs,lack of procedural sanctions.Finally,on the basis of introducing the experience from foreign countries about the withdrawal system(withdrawal period,the legal effect,the defendant agreement forms etc.)and the judicial practice in our country,the advice to perfect Chinese second withdrawal system put forward are as follows: the rights of disposition,litigation equality and litigation efficiency principles should be adhered to;court treatment should be cleared,and the provisions of other parties agreement shall be specific,the procedural sanctions measures of violating withdrawal system should be established;stipulating the plaintiff burden the the cost of litigation and making an exception for a second trial again after withdraw the prosecution in second instance.