| Due to the ambiguity of the concept of withdrawal,the habits of terminology,and the unclear provisions of the law,the civil second-investigation withdrawal system has been used to refer to both the “Second-trial Withdrawal Appeal” and the“Second-Trial Withdrawal of Lawsuit”.In order to avoid ambiguity and focus on the theme,The second-instance withdrawal in this article is limited to the case of second-instance withdrawal of prosecution.Before the promulgation of the Supreme People’s Court’s Interpretation of the Application of the Civil Procedure Law of the People’s Republic of China(hereinafter referred to as the "Interpretation of Civil Procedure"),scholars should each hold a single sentence on whether or not the second-instance withdrawal system is included in the law.In 2015,the Interpretation of Civil Procedure was put into practice,and Article 338 established the system for the withdrawal of civil second instance.The Second-Instance Withdrawal System has its profound theoretical basis: the principle of punishment requires that the judicial power can not interfere with the free will of the parties.The party’s independent choice to terminate the litigation is also the proper meaning of the principle of disposition;the Civil Second-Investigation Withdrawal System improves litigation efficiency and maintenance.The equality of litigant rights and the stability of procedures also play a huge role.Since the second-instance withdrawal system was put into operation in 2015,its recognition and acceptance have increased.Through the investigation of the second-instance withdrawal system of other countries and regions and the analysis of the legislation and judicial status of the second-instance withdrawal system in China,we can find that there are some problems in the second-instance withdrawal system in China.Specifically,the power of the second-instance withdrawal system in China is still strong.Even if the conditions for withdrawal of the lawsuit are satisfied,the court may permit rather than permit it;and the prohibition of repeated prosecution in cases such as personal and family affairs is not conducive to the protection of the rights of the parties;the method of consent of the parties needs to be further clarified;the plaintiff in the original lawsuit withdraws the lawsuit and its interests are harmless.If the guarantor’s whereabouts are unknown,the plaintiff’s inability to withdraw the lawsuit is also inconsistent with the spirit of the second-instance withdrawal system;if the appeal is withdrawn at the same time,the court’s ruling method needs to be unified;the burden of litigation costs is even more confusing.For the improvement of the above problems,we must adhere to the principle of disciplinary action,the principle of equality of litigant rights,and the principle of litigation benefit.The specific measures include: the court mainly conducts formal review of the second-instance withdrawal,and the court should agree to the original plaintiff’s withdrawal of the application as long as the formal requirements are met;Cases of personal relationships,jurisdictional objections,etc.,may be allowed to re-sue;refine the details of the other parties’ consent methods,and clearly stipulate that other parties need to reply in writing or verbally within 15 days,if not explicitly stated It is deemed to be consent,and the plaintiff in the original trial and the defendant agree to withdraw the lawsuit,and may not need to obtain the consent of the unidentified party whose interests are not harmed;the plaintiff may withdraw the appeal from the second instance without responding to the appellant’s withdrawal of the appeal,avoiding contradictions;the plaintiff of the original trial is withdrawn in the second instance.In the case of prosecution,the litigation fees of the first and second trials shall be borne by the plaintiff in the original trial. |
