Research On Withdrawal Of Prosecution In The Second Instance Of Civil Action

Before the introduction of judicial interpretation,due to the lack of legal provisions,the relevant issues of the plaintiff's application for withdrawal of prosecution in the second instance not only lead to differences in the way of handling in judicial practice,but also lead to disputes in the legal theory circle.After the introduction of judicial interpretation,although it provides a legal basis for dealing with relevant disputes,whether it can be handled properly or not needs to be tested by judicial practice.Therefore,it is of theoretical and practical significance to study the withdrawal prosecution system in the second instance.This article will take the case in judicial practice as a sample to analyze and demonstrate the relevant issues of withdrawal of prosecution in the second instance,in order to provide reference for similar cases.In addition to the conclusion,the text is divided into four parts,a total of about 20000 words.The first part,introduces the basic case,leads to the relevant issues.Fu Xiaoyi sued Xiaogan life insurance company in the case of motor vehicle traffic accident liability dispute,and Fu Xiaoyi withdrew the lawsuit in the second instance.After that,Fu Xiaoyi sued again with the same defendant,the same object of action and the same claim.The court of first instance made a ruling of inadmissibility.Fu Xiaoyi refused to accept the ruling.He appealed and applied for retrial successively,but it was not supported.The focus of this case is whether Fu Xiaoyi can sue again and whether the original court of second instance has properly exercised the power of examination and interpretation.This leads to the withdrawal of prosecution in the second instance.The second part focuses on the analysis and demonstration of the two major arguments of withdrawing prosecution in the second instance of civil litigation.There are two main arguments about the withdrawal of prosecution in the second instance of civil litigation: whether the prosecution can be withdrawn in the second instance and whether the prosecution can be resumed after withdrawing the prosecution in the second instance.This paper sums up the different opinions of the academic circles,and demonstrates that according to the principle of autonomy of private law,the prosecution can be withdrawn in the second instance,and according to the principle of non bis in idem and consumption of litigation right,the prosecution can not be resumed after withdrawal in the second instance.In the third part,it expounds how the court properly performs its functions and duties when it withdraws the prosecution case in the trial of the second instance.The withdrawal of prosecution in the second instance inevitably involves the litigant's right of action and the court's judicial power.Only when the court exercises its judicial power properly,can it achieve the dual purpose of protecting the right of action and supervising the right of action.Withdrawal of prosecution in the second instance will have complex legal consequences.The court shall explain to the parties the litigation rights enjoyed by the parties who withdraw the prosecution in the second instance and the legal consequences after withdrawing the prosecution,so that the parties not only know the rights,but also understand the risks,and urge the parties to make appropriate decisions.The court also needs to exercise the right of examination correctly,keep the gate of withdrawing the prosecution in the second instance well,and should not relax the examination in order to pursue the trial quality and efficiency.The fourth part is to perfect the defects of the current judicial interpretation on the withdrawal of prosecution in the second instance.First of all,the plaintiff's unilateral application for withdrawal of prosecution is added.In general,the plaintiff in the second instance must obtain the consent of other parties to withdraw the lawsuit,but in the special case that the parties have reached a settlement agreement and fulfilled it,or the plaintiff in the first instance has given up the substantive property rights,the plaintiff in the second instance shall be allowed to withdraw the lawsuit unilaterally.At the same time,it should be noted that in the case of the third party with independent claim right participating in the lawsuit,if the plaintiff in the original trial can not directly give up his substantive property right and unilaterally apply for withdrawing the lawsuit,the consent of the third party with independent claim right shall be obtained.Secondly,it is necessary to improve the provisions of withdrawal of prosecution when a settlement agreement is reached,clearly use the expression of "withdrawal of prosecution" in the law,and distinguish whether the settlement agreement has been fulfilled.Thirdly,the court of second instance can not directly rule to cancel the judgment of the original court after the plaintiff withdraws the lawsuit.After the written order of the court of second instance is served,the judgment of the people's Court of first instance shall be deemed to be revoked.Finally,in the second instance,the plaintiff of the original trial should apply for withdrawal of prosecution before the court of second instance adjudicates.If it is found that there is an illegal act that needs to be dealt with,the court may review and decide not to allow the plaintiff in the first instance to withdraw the prosecution in the second instance.If the plaintiff in the original trial brings a suit again after withdrawing the suit in the second instance,the court shall not accept it.However,if the lawsuit does not belong to repeated prosecution and involves personal relationship,the court shall accept it.In the second instance,the withdrawal of prosecution and the withdrawal of appeal will have different legal consequences.When the plaintiff applies for the withdrawal of prosecution,the court cannot require the appellant to apply for the withdrawal of appeal at the same time.