Research On Civil Non-Prosecution Contract

Professor Jiangwei first raised the issue of litigation contract in the article "The Mission of Market Economy and Civil Litigation Law" in 1996.Later,influenced by the theory of civil contract,the theory of civil litigation contract was enriched.The research on the civil non-prosecution contract is complicated with the theoretical issues involved and the theoretical disputes are quite large.As a result,the court lacks a unified standard when dealing with the civil non-prosecution issue,thus causing the judicial decision to be handled in a manner and the result of the treatment is inconsistent.In practice,the number of civil cases involving civil non-prosecution contracts has increased in recent years.In order to clearly understand the court's attitude towards such cases,the author has retrieved 521 judgment documents as basic research materials on the "No Litigation" website.To obtain a visual view of the specific practice of the courts in cases involving civil non-prosecution contracts in the form of a table in order to make macro judgments on judicial decisions.In theory,the core of the research on the civil non-prosecution contract lies in the theory of civil litigation rights,which directly affects the court's recognition and treatment of civil non-prosecution contracts.Based on the development of civil litigation right theory,the author compares several representative civil non-prosecution contract theories so as to understand more intuitively the attitude of the mainstream view in academic circles.his article is divided into four parts;The first part: The civil non-prosecution contract is controversial in practice.First of all,the author starts from the judicial practice case that can be used as a sample,summarizes the basic situation of the case involving the civil non-prosecution contract and the court's handling of the case.Summarize the current civil judicial practice in the handling of cases there are inconsistent handling methods,the court on the civil non-prosecution contract is disputed.Secondly,based on the problems in judicial practice,the author analyzes the causes from the perspective of legislation and theoretical research.The second part: Civil non-prosecution contract research path choice.First of all,the core of the civil non-prosecution contract is the theory of civil litigation rights.The choice of civil litigation rights involves the characterization of civil non-prosecution contracts.The current theory mainly holds that the civil non-prosecution contract has the property of substantive law,and that the civil non-prosecution contract has the property of procedural law.It is considered that the civil non-prosecution contract should not be qualitatively compromised.The above private law acts are divided into support and negation,and support is said to recognize the dispute resolution function of civil non-prosecution contracts;The negative theory denies the dispute resolution function of the civil non-prosecution contract on the ground that the civil non-prosecution contract has caused infringement on the right of action.Secondly,when it comes to the handling of civil non-prosecution contracts,some theories of the outside world hold that the judicial organs should examine civil non-prosecution contracts concluded between civil subjects according to certain standards,although there are differences in the core theories of different treatment models.But the common way of confirming contract by judicial review provides a useful reference for the study of civil non-prosecution contract in China.From the point of view of theoretical reference and practicality,the author believes that the theory of civil non-prosecution contract compromise has a strong reference value for solving actual cases.First of all,the theory of compromise theory is based on the premise of fully respecting the irremovability of civil litigation rights and is in line with the current mainstream theory.Secondly,the compromise theory meets the actual needs of solving the typology problem;Thirdly,the existence of the civil non-prosecution contract is the social basis.The civil non-prosecution contract supported by the theory of compromise can fully mobilize the enthusiasm of the social forces in the settlement of disputes;Finally,some theories and practices of the outside world also provide reference for the theory of compromise.The third part: Civil non-prosecution contract compromise theory of rationality of the theoretical basis.Civil procedure,as a dispute resolution procedure between private law subjects,needs to rely on state coercive force to ensure the authority and impartiality of the referee,and the civil procedure justice guarantees that the interests of civil subjects can be fully guaranteed.However,under the influence of the modern contract concept on the civil dispute settlement process and under the impetus of the theory of the expansion of the parties 'power of disposition,the active role of civil subjects in civil proceedings has been theoretically promoted,and the subject of disputes is in a more active position in the dispute resolution process.The role of the contract in resolving civil disputes is more obvious,so the civil non-prosecution contract is reasonable in theory.The existence of civil non-prosecution contract is related to the traditional dispute settlement mode in our country.Under the traditional mode,the parties to the dispute are more willing to resolve the dispute through agreement for many reasons.Therefore,the civil non-prosecution contract has a certain social basis.The fourth part: the improvement of civil non-prosecution contract.In theory,China should recognize the civil non-litigation contract,and recognize the role of the contract in the dispute settlement process and the effect of private law under the premise of civil litigation rights public law.Legislation should also support the court to fully respect the civil non-prosecution contract dispute resolution,through judicial confirmation of the form of contract play a role.