On The Non-prosecution Contract In The View Of Judicial Confirmation

Non-prosecution contract belongs to the type of abandonment contract,as to whether the nature of the contract of Non-prosecution is the property of the private law contract or the lawsuit contract or both the private law contract and the lawsuit contract,the theory circle has not reached the unified idea.While the rise of the theory of "the contract of civil lawsuit" in the 60 's,although the theory of the non-prosecution contract has received some attention,it is rare to study the special research on it by domestic and foreign scholars.Judging from the judicial practice in our country,there are a large number of non-prosecution contract types,there are many parties through private agreement on the right of action,to exclude the court's control of the case,because the law does not make a special explanation,judicial interpretation is not involved,so the judge of such cases often lack of directional provisions,Thus,there is a certain confusion in judicial operation,therefore,it is necessary to study the issue of non-prosecution contract.This paper starts from the problems existing in the actual application of the non-prosecution contract,by summarizing and analyzing,the author further deduces the alternative solution path of non-prosecution contract,and through the comparison of different solutions and the summary of Theory and practice at home and abroad,we should deal with and deal with the problem of non-prosecution contract in our country,and propose the perfect plan.This article includes a total of five parts,the first part summarizes the operation of non-prosecution contract in our country's judicial practice,and sums up the realistic problems of non-prosecution contract,such as the judge's unclear understanding of the legal effect and constitutive elements of non-prosecution contract,and then analyzes and sums up the problems of non-prosecution contract.Finally,the author puts forward the reasons for the existence of the problem of non-prosecution contract,that is,the disconnection between the theory and practice of non-prosecution contract,and the absence of a unified and detailed system norm for non-prosecution contract,and the safeguard measures in the process ofnon-prosecution contract formation.The second to third part is the analysis of the alternative path of the non-prosecution contract,the first way is to realize the procedural law effect of non-prosecution contract by giving the Non-prosecution contract,the second way is to make the non-prosecution contract have enforceable effect through judicial confirmation,The second path is better suited to the theoretical environment and judicial practice in China through the interpretation and comparison of two paths.Then the fourth and fifth parts explain the judicial confirmation path concretely,including the nature and form requirement of the non-prosecution contract,the constitutive elements,the defective remedy and so on,and put forward the corresponding perfect measures.