On The Protection Of The Rights Of The Defendant In Withdrawing An Action

The "interpretation of the Supreme People's Court on the application of the" PRC Civil Procedure Law "238th stipulates that if the defendant does not agree with the plaintiff to apply for withdrawal at the end of court debate,the court may disagree.That increase dissent opportunity to break the current withdrawal system to disregard the defendant procedural status of the situation to some extent,but because the thinking of plaintiff of the high rate has become a kind of inertia awareness,so in the withdrawal of discrimination in the defendant has always existed.The withdrawal of the right of final decision in court has its historical reasons,but based on the development trend of consideration and the parties of the litigation structure of realistic factors,should be the withdrawal from the decision of the court to the parties return,giving the defendant the right to be as far as possible to avoid improper withdrawal to the plaintiff caused losses.Though the proposition is small,the problem of the protection of the defendant's rights should not be ignored in the lawsuit.Further exploration of the protection of the defendant's rights in the withdrawal is of multiple values in theory,legislation and practice.In addition to the introduction and conclusion,the text is divided into four parts,about35000 words.The first part is the theory analysis of the protection of the defendant's rights in the withdrawal.The theoretical basis is that the consensus of the litigant litigation structure is the decisive factor,and the theory of the right to appeal and the theory of the limitation of the right of appeal are important support.To explore the protection of the rights of the defendant in the withdrawal of the lawsuit has the practical value of demonstrating the theoretical value of the procedural justice and adapting to the settlement of the dispute.The second part is the actual investigation of the protection of the defendant's rights in the withdrawal of the lawsuit.The withdrawal condition legislation setting,according to the legitimate rights and interests of the defendant did not consider the provisions of withdrawal treatment;theory around after the withdrawal of the limitation of action,the withdrawal of contract dispute has been difficult to lead to the application of each sticks to his own stand.,uniform;high withdrawal rate in the judicial practice,improper withdrawal decision led to judge withdrawal phenomenon and the status quo of the plaintiff and the defendant in the litigation cost asymmetry more prominent,lead to withdrawal of the plaintiff and defendant inlitigation,in the judge's neutral situation difficult to achieve the vision of equality against.The third part is the reference in the perspective of two major legal systems.The main countries of the two legal systems guarantee the right of participation of the defendant after the substantive participation in the lawsuit,and allocate the cost of litigation in a reasonable way.Our country can draw lessons from the exercise and limitation of its withdrawal,the contract of withdrawing the prosecution,the cost burden of the lawsuit and so on.The fourth part consummates the idea of the protection of the right of the defendant in the withdrawal of the lawsuit.We should improve the participation status of defendant's procedure,clarify the legal effect after withdrawal and the effectiveness of withdrawal contract,improve the judge's evaluation mechanism,and give appropriate economic compensation for the loss caused by the withdrawal of defendant's lawsuit.