| The non-prosecution contract,as the action contract of the waiver of the right of action,is the act of the parties agreeing to punish the right of action.The non-prosecution contract is very common in practice,but the current law of our country does not make the corresponding stipulation to the non-prosecution contract.Under the influence of the right of action theory,there is a debate on the validity of the contract of non-prosecution in judicial practice,which makes the court have the situation of different judgments in the same case when the contract of non-prosecution is involved in the case,so it is of great significance to study the system of sorry action contract.The first part of the article is a summary and discussion of the meaning,nature and legal basis of non-prosecution contract.This paper holds that the contract of non-prosecution refers to the settlement of disputes by agreement between the two parties or parties before the dispute is submitted to the court for litigation settlement.By signing the contract,the right of action is punished in advance,and the dispute between them is resolved by way of litigation.Secondly,the theory of private right autonomy and punishment principle in the field of private law,the hypothetical theory of rational parties,the need to construct diversified dispute resolution mechanism and to protect the parties’ free choice in the relief path are the legal basis for the development of non-prosecution contract system.Finally,based on the analysis of the nature of the litigation contract,the nature of the sorry action contract is determined.In this paper,the non-prosecution contract has the dual nature of private law and litigation.The second and third parts of the article are the current dilemma of non-prosecution contract and its causes.At present,the main problems of the non-prosecution contract system are:first,there are disputes between the practical and theoretical circles on its effectiveness;secondly,the relevant legal system,especially the relief system,is missing;finally,The content of non-prosecution contract in practice is not standardized.At the same time,the causes of the dilemma are discussed,mainly due to the misreading of the right of action theory and the lack of attention to the principle of punishment in China.The fourth part of the article is about the construction of non-prosecution contract system.Determining the validity of non-prosecution contract in legislation is the premise to end the disorder of judicial practice and construct the non-prosecution contract at the same time.In the process of the system construction of the sorry action contract,the definition of the construction elements of the sorry action contract is the basis of the construction of the non-prosecution contract.At the same time,the scope of application of non-prosecution contract,the influence on litigation procedure and the remedy procedure of defects of non-prosecution contract are discussed.Finally,the non-prosecution contract should be limited so that the non-prosecution contract system can be regulated. |
