| The withdrawing-a-civil-action contract is the subordinate concept of civil litigation.The contract for withdrawing-a-civil-action,which will be discussed in the thesis,is one of these giving-up litigation right contract.The parties would reach an agreement and promised to withdraw a civil action in the judicial practice.The withdrawing-a-civil-action contract showed earlier and had already gained recognition in the law system of American and Germany precedent.Theory horizon abroad to the withdrawing-a-civil-action contract research had been more nature,also the judicial practice.However,they are not involved in the practice of the contract,the prosecution of civil procedure law and relevant judicial interpretations.In China,the current<civil procedural law>,it has statutory civil procedural contract such as Jurisdiction agreement,Evidence contract and The option of the civil procedures contract.And our country of the legislation contract is not thorough,in a large part it doesn’t fit the development of the judicial practice.So,we should pay more attention to the withdrawing-a-civil-action contract.Therefore,using the withdrawing-a-civil-action contract practice sample as a starting point and end-result,and,absorbing domestic and foreign litigation contract theory,this thesis makes interpretations which are suitable to China’s national condition on some basic theoretical issues of the withdrawing-a-civil-action contract.I hope it is good to the development of litigation contract in our country.The thesis emphasize on the legality of the withdrawing-a-civil-action contract and the legal effect of the withdrawing-a-civil-action contract.The thesis introduces the research of the withdrawing-a-civil-action from the case of Jin Weiping and Jin Leping.The thesis is divided into four parts.The first part mainly discussed the general theory of the contract.The part is divided into two parts.The first part is the appearance of the upperseat concept,introducing the germ and the concept of the withdrawing-a-civil-action contract,and makes a distinction between the general and special contract.The second part is the origin of the withdrawing-a-civil-action contract,analyzing both home and abroad.The second part is the legality of the withdrawing-a-civil-action contract.At first,with the development of the traditional theory,the legality of the withdrawing-a-civil-action is gradually admitted by many researchers.Combining Chinese special practical circumstance and some related tendency from the<Provisions of the Supreme People’s Court on Certain Issues Concerning the Application of the ’civil procedure law’>,the thesis put forward the legality of the withdrawing-a-civil-action contract.Secondly,I discuss the boundaries of the contract.It includes the following contents:the withdrawing-a-civil-action contract shall not violate the force law and damage the social public interests and other’s legitimate interests;the withdrawing-a-civil-action contract shall not violate the principle of good faith.The third part is about the contract’s legal nature.Since the legal nature affects legal validity,different legal nature has different legal validity and rescue methods,it is an important dispute in the scholastic circles.The thesis introduces three main viewpoint:the private law act,the litigation act and quasi-litigation act.Based on the analysis of these theories I point out the rationality of the litigation act and put forward my own opinion.The forth part mainly studies the legal effect of the withdrawing-a-civil-action contract.What effectiveness should the legal litigation contract have?For this issue,the thesis discusses the problem from three aspects:The first,does it have disposal effectiveness or the burden of effectiveness?The second,if the plaintiff does not withdraw a civil action by contract,how to rescue?The third,after the plaintiff withdrawing a civil action to end lawsuit,whether the plaintiff can bring the lawsuit again.This thesis put forward suggestion of the withdrawing-a-civil-action contract which are suitable in China. |
