Civil Withdrawal System

As an important civil procedural system, withdrawing claims can be found in all civil procedural laws including our country's laws. But our country's system of civil withdrawing claims has many legislative flaws, such as simple, negligent articles, which result in poor operation in practice. Therefore, it is necessary to reform and make it perfect. In this paper, we introduce the basic concepts of civil withdrawing claims, and analyze its character and basis of jurisprudence, and then we do the analysis of the current our country's legislative regulations, existing flaws and theoretical defects. Through probing into foreign system of civil withdrawing claims, we put forward some concrete ways to perfect the system of our civil withdrawing claims. In the end, we discuss the interlinking problem between the system of default judgment and the system judging by withdrawing claims, seeking more harmony in the system of civil withdrawing claims. The paper divides into seven parts.Part one: Introduction. Due to wide use in judicial practice and the confusion in procedure moving, this part figures out the importance of the research and draws the outline of the paper.Part two: Summary of the system of civil withdrawing claims. We analyze three different viewpoints about the concepts of civil withdrawing claims among the academia in our country, and define the main emphasis of our research to withdrawing claims in first instance, and then we analyze the character of civil withdrawing claims. Through comparing the concept of withdrawing claims with the concept of giving up suit claims, we clarify the character of withdrawing claims, which is procedural purely, not substantial and come to the following conclusion: withdrawing claims can't do damage to the lawful rights and interests of the nation, collectivity and individual. Finally, to understand its concept more profoundly, the paper analyzes its basis of jurisprudence, i.e. disposal principle of civil action. All the contents above establish the solid foundation for analyzing the theoretic defects of thesystem of our country's withdrawing claims and perfecting the system in the following parts.Part three: Comments on the system of our country's civil withdrawing claims. Studying the system of our country's civil withdrawing claims should lie in its legislative regulations. We simply tick off the legislative regulations of our country, then point out three flaws definitely: 1. The court has the indefinite veto right to withdrawing claims, which results in the phenomena that the judge interferes with the parties' withdrawing claims improperly.2.The right and the duty are not balanced between the accuser and the accused, for which neglects right protection to the accused. 3. The conditions, procedures, etc. of withdrawing claims is principled more excessively and lack of operational character, which result in many problems in both theory and practice. Finally, we analyze its two theoretical defects: 1. withdrawing claims can do damage to the lawful rights and interests of the nation, collectivity and individual. 2. The court should enjoy the indefinite veto right to withdrawing claims. This part gives a struggling direction to perfecting the system of our country's civil withdrawing claims.Part four: Introduction and review on the system of foreign civil withdrawing claims. Through legislation study on the systems of civil withdrawing claims of France, Japan, Germany, England, the USA and so on, the article reveals common characters, e.g., withdrawing claims by the accuser should be agreed by the accused, and reviews their different points. This part gives a meaningful reference and inspiration to perfect the system of our country's civil withdrawing claims.Part five: Reconstruction of the system of our country's civil withdrawing claims. Firstly this part states the principles that the reconstruction of this system should be followed: 1. the protection principle of suit rights.2. the equity principle of suit rights. 3. the stability principle of suit procedures. Guided by these principles, we put forward concrete assumptions to reconstructing the system of our country's civil withdrawing claims in the following five ways: the conditions of withdrawing claims, the procedures of withdrawing claims, the effectiveness of withdrawing claims, thelawful remedies to withdrawing claims rights, and the compensation for the accused due to withdrawing claims by the accuser. The part is the core of this paper, which also embodies the creative fruits of this paper.Part six: Influences on default judgment by reconstructing the system of our country's civil withdrawing claims. We tick off the current our country's legislative regulations about the system of default judgment and the system judging by withdrawing claims, then point out two flaws here: 1. It goes against the equity principle of suit rights. 2. Legislative leak give a chance for the accuser to evade the law. Finally, in reference to foreign legislative experience, the paper improves the system judging by withdrawing claims, to achieve more harmony in the system of civil withdrawing claims.Part seven: Conclusion. This part points out the shortage of this paper, and presents the problems that need further study.