Study On The Problem Of Restraining The Prosecution After Withdrawing The Lawsuit In The First Instance

At present,in the first instance of China,there is no restriction on the litigants' reprosecution after the withdrawal of the lawsuit in the first instance,except for the case of dissolution of marriage.At the same time,the defendant lacks the right to fight against the plaintiff's re-prosecution,and the increase of litigation resources caused by the plaintiff's unreasonable re-prosecution cannot get reasonable compensation,forming an unbalanced legal relationship.In this case,there are the following two problems: first,in the system of first instance withdrawal and subsequent reprosecution,both parties,especially the defendant,are unreasonably limited in their right to dispose of the procedure,and the defendant lacks the right in the first instance withdrawal and subsequent reprosecution;Second,the procedural control right of the withdrawal of the lawsuit in the first instance and the subsequent prosecution is essentially controlled by the court,but there is a lack of clear legal norms and guidelines in the exercise of the elements,that is,excessive interference and chaotic exercise of the disposition right of the parties may be caused.On the one hand,it theoretically analyzes the necessity of restricting the right to appeal again and expanding the right to dispose.On the other hand,it is helpful for the theory of restraining the right to dispose and the right to appeal to get reasonable attention in practice,so as to build a healthy legal system of civil litigation.In practice,through the division of the types of withdrawal and reprosecution in the first instance,and on the basis of the typology analysis,the limitation mode is constructed in combination with the specific domestic situation and foreign experience,so as to prevent the parties from playing tricks to delay the litigation,expand the litigation resources of the other parties and cause the waste of judicial resources.The full text is more than 37,000 words,in addition to the introduction and conclusion,divided into five parts.It mainly reveals the problems of re-prosecution,and discusses the necessity and types of re-prosecution after the withdrawal of the first instance,as well as the construction of the current re-prosecution system in China.The details are as follows:The first part of the restrictions on the first trial of the withdrawal of the prosecution after the prosecution of the problem is clear.This part expounds the reasons why the court controls the withdrawal of the first instance and the later prosecution system and the possible problems arising from it.The second part is the classification of the types of prosecution after the withdrawal of the first instance.The part will be dropped after the prosecution stage of trial according to the lawsuit time phase and form has carried on the classification,according to the time period is divided into the trial before and after the trial dropped before prosecution,because before trial the defendant should appeal to or not,from this again to the pretrial phase subdivided into the defendant responses before and after investigations dropped after the prosecution;According to the forms of expression,it can be divided into the first instance reconciliation,the second prosecution after the withdrawal of the first instance mediation,and the third prosecution after the withdrawal of legal fiction.The third part is the basic theory of restricting the prosecution after the withdrawal of the first instance.This part explains the structure of the right of action,and briefly explains that restricting the right of action is the connotation of the right of action and the extension and requirement of safeguarding the right of action,which provides the basic theoretical support for restricting the prosecution after the withdrawal of the first instance.The fourth part limits the position of prosecuting after the withdrawal of the first instance.This part firstly limit the first-instance dropped again after the means of prosecution and litigation right limit theory,the principle of lawsuit efficiency and power balance,in combination with the foreign and the outside after laws restrict dropped after the prosecution of trial experience,the brief analysis of limiting the first-instance dropped after the prosecution of feasible way,from the view of necessity and feasibility to withdraw after the prosecution of trial to limit positionThe fifth part is the construction assumption of restricting the prosecution after the withdrawal of the first instance.This part is mainly combined with the actual situation of our country to restrict the system conception of the prosecution after the withdrawal of the first instance.Combined with the classification of types and overseas experience,the basic requirements,mode of restriction,types of exemption and supporting measures for the establishment of the reprosecution system after the withdrawal of a lawsuit in the first instance are concretely constructed.