The Practice Dilemma And Its Crack Of Regarding Some Actions Of The Plaintiff As Nolle Prosequi In Civil Procedure

According to China's Civil Procedure Law,if the plaintiff refuses to attend the hearing after he has been summoned to appear in court or withdraws from the trial without the preside judge's permission during the hearing,the judge may regard his actions as nolle prosequi.In addition,China's judicial interpretation of the Civil Procedure Law also stipulates that the judge may regard it as nolle prosequi in case the parties fail to pay the litigation fee.Regarding some actions of the plaintiff as nolle prosequi is a presumption that judge presumed that the plaintiff had the intention to drop the lawsuit and treated it as nolle prosequi based on the negative actions of the plaintiff which resulted that the trial couldn't continue.One of the legislative purpose s of the system of regarding some actions of the plaintiff as nolle prosequi is to guarantee the smooth process of the trial.The second is to safeguard the litigant's procedural rights while maintaining the court order.On the basis of practice,this paper finds through analyzing relevant cases and reads relevant literature there are some problems when judge applies the system of regarding some actions of the plaintiff as nolle prosequi.First,different courts have different standards for the determination of the same legal cause.The second is that the scope of the grounds for regarding some actions of the plaintiff as nolle prosequi is unduly expanded.The third is that the judges' explanations of applying it are too simple and the forms are confused.The reasons of these problems are mainly reflected in the following aspects: First,the legislative provisions about the system of regarding some actions of the plaintiff as nolle prosequi are relatively insufficient.The system of regarding some actions of the plaintiff as nolle prosequi in our country has existed since the legislation of Civil Procedure Law and its content has never changed.Because the provisions are insufficient,judges have to exercise their discretion in the application process,which is affected by the judges' choices of personal value,and it is easy to cause unreasonable conditions.The second is to apply the system of regarding some actions of the plaintiff as nolle prosequi to actions of disrupting the trial w.As to the plaintiffs' actions of violating the order of court and obstructing litigation,they should be regulated by the compulsory measure of disrupting trial,but the actions were handled according to the system of regarding some actions of the plaintiff as nolle prosequi.The third is the effect of the system of nolle prosequi rate and judge post.As an important indicator of judges' performance evaluation and the system of judges' post,the withdrawal rate makes judges prefer to apply the withdrawal procedure.Fourthly,the judge misunderstood the legislative purpose of the system of regarding some actions of the plaintiff as nolle prosequi.As to the plaintiff's minor breach of the court order,it is presumed that the litigant is the intention to drop the lawsuit,thus the plaintiff is presumed to be treated as nolle prosequi.Therefore,based on the theory and practice of civil action,this paper puts forward the following measures to deal with these problems.Firstly,to improve the legislative model of the system of regarding some actions of the plaintiff as nolle prosequi,and to refine the application conditions of it.Secondly,the standard of ruling shall be unified for the non-statutory cause appearing in practice.Thirdly,make the circumstances of alienation in practice return to the meaning of the text and rationally apply this system.Fourthly,we should improve the remedy procedure of this system and give the plaintiff the right to appeal and procedural guarantee;Fifth,perfecting the explanations and writing of the verdict on regarding some actions of the plaintiff as nolle prosequi;Sixthly,we should improve the relevant supporting measures and punishment mechanisms.