Empirical Research On The System Of Withdrawing Prosecution In Civil Second Instance

Compared with other legal systems,the withdrawal of prosecution in the second instance has attracted less attention from the academic community.Since the establishment of the rule of law,there have been no monographs issued.The low degree of attention does not mean that it is not important,but it is one of the important components of the withdrawal system.In 2015,the "Interpretation of the Civil Appeal Law" was promulgated.The original plaintiff in the second instance of civil trials can withdraw the lawsuit according to the law,and the conditions can be allowed to meet.Once the lawsuit is withdrawn,the lawsuit is terminated and no further lawsuits are allowed.Using the empirical analysis method,the author analyzes the legislative and judicial situation of the system since its introduction and operation,and finds that there are still many problems: the rate of withdrawal of prosecution in the second instance can be followed by laws,but the rate of withdrawal of prosecution is declining;The unclear application method of the parties,the unclear burden of litigation costs in the second instance,and the unclear treatment of the withdrawal appeal at the same time all lead to confusion in judicial practice.In addition,at the legislative level,there are still problems such as the lack of interpretation system provisions when withdrawing the prosecution,the prohibition of re-prosecution of the suspicion of depriving the parties of their right of action,and the "permitted" infringement of the party's principle of disposition.German,Japanese and Chinese Taiwan have the earlier and advanced legislation of the withdrawal system,and it is worth studying.Compared with China,the system is more systematic and complete,including the scope of withdrawal,the application method,the time limit for application period,and the burden of litigation expenses,etc.At the same time,the principle of disposition of the parties is respected to a great extent,and some or all of the claims in the lawsuit may be withdrawn.And moderately release the prohibition of further complaints,highlighting the superiority of its judicial level.With a view to improving China's domestic judicial system,we will increase the number of cases in which the second instance withdraws the system of exculpatory prosecution and the appropriate opening of the prohibition of re-appeall.The proposal to allow identity relationship cases and cases based on the consent of the parties to re-sue,to clarify the subject of litigation costs,and to change "may be allowed" to "should be allowed" has sufficient theoretical basis and practical needs.