Research On The Civil Withdrawal Prosecution System

As an important litigation system,the system of civil withdrawal of prosecution is stipulated by the legislation of various countries,and the doctrine of punishment is the basis of its construction.C ivil withdrawal of prosecution is not only a way for the court to close the case,but also an important embodiment of the parties' exercise of procedural choice,so the withdrawal prosecution system should be based on respecting the status of the party's procedural subject.Civil litigation in our country is in the transition period from authoritarianism to litigant doctrine.In 2015,the explanation of Civil procedure Law perfected the system of withdrawal of prosecution and clarified the system of withdrawal of prosecution in the procedure of first instance,second trial and retrial.Although there has been a marked improvement over the past,it is still convex.lt shows that the intervention of court functions and powers is too strong,the parties lack subjectivity in the process of withdrawal of prosecution,and the equal protection of the parties is insufficient.This paper attempts to start with the theoretical basis of the withdrawal of prosecution system,investigate the relevant foreign legislation,and put forward a perfect idea on the basis of analyzing the defects of the withdrawal prosecution system in our country.On the basis of briefly summarizing the research status,significance and research methods of withdrawal prosecution system within and outside the domain,this paper studies the withdrawal prosecution system in China in four parts.The first part makes a comparative analysis of the concept of civil withdrawal prosecution system in China,analyzes the subject,nature and scope of withdrawal prosecution,and distinguishes the main points of view in China.From a narrow point of view,the withdrawal of prosecution is defined,and the withdrawal of prosecution is a lawsuit in which the plaintiff applies to the court to withdraw the prosecution.This paper demonstrates the legitimacy of withdrawal of prosecution from the principle of punishment,the principle of equality and the principle of procedural subjectivity,and demonstrates the limitation from the point of view of the principle of procedural stability.The rationality of the abuse of the right to withdraw the prosecution.The second part divides the procedure of first instance,second instance and retrial as the stage,analyzes the problems caused by the imperfect legislation of withdrawal of prosecution in different stages of litigation,including the substantive examination of the withdrawal of prosecution by the court of first instance.The second instance has some problems,such as the legitimacy of the standard of withdrawal of prosecution and the internal conflict between the withdrawal of prosecution and the supervision of trial.The third part,by investigating the withdrawal prosecution system in Germany,Japan,France,the United States and other countries,respects the subjectivity and right of disposition of the parties,and attaches importance to the systematic construction of the withdrawal prosecution system and the sharing of litigation costs.The method of interruption of limitation of action,etc.The common content in the law effect is summarized and used for reference.The fourth part responds to the problems existing in the withdrawal of prosecution system in our country,from the time,form and effect of the withdrawal of prosecution,to change the decisive position of the court in the withdrawal of prosecution system,and to respect the subjectivity of the parties.To protect both parties on an equal footing,to strengthen the protection of the defendant's right of consent in the process of withdrawal of the prosecution,and to limit the number of times the plaintiff has resumed the prosecution after the withdrawal of the prosecution,respectively,in respect of the first trial and the second trial,This paper puts forward some countermeasures to deal with the problems existing in the withdrawal of prosecution in different procedures of retrial.