Research On Settlement Agreement Including A Nol-pros Contract

With the development of economy and the society, litigation explosion’s era is coming. How to utilize the limited resources of litigation to settle more disputes is a common topic in the world. Settlement and mediation as two kinds of the litigation dispute resolution mechanism have been applied widely, but laws on how to play its role vary from country to country. In our country, mediation plays a significant role in the Alternative Dispute Resolution, however, there are lots of problems in the modern court mediation, such as too much judge’s initiative, the disciplinary right of the parties to exercise limited,and so on. At the same time, situations that the parties reach a settlement agreement including a Nol-pros contract are more and more common, but legislation and judicial practice do not make too many provisions on it. The current civil procedural law only has three provisions on settlement, and the academic community studies settlement systematically from a functional framework, not from details. Therefore, the author chooses to research the settlement issue from a Supreme guiding case.In addition to the implication guide,this paper is divided into five chapters.The first chapter is an overview of the settlement agreement including a Nol-pros contract. This chapter discusses the settlement agreement from two perspectives. One is the concept of the settlement agreement including a nol-pros contract, analyzing its content and features. The other is to distinguish the settlement agreement with other related concepts, in order to understand it more better.The second chapter discusses the legitimacy and the legal nature of the settlement agreement including a Nol-pros contract. Firstly, it is necessary to discuss the legitimacy of the settlement agreement. Because the law does not make provisions for this. Secondly, it is necessary to discuss the nature of the settlement agreement. In this regard, there are three theories in academia.This section briefly summarizes the advantages and disadvantages of various theories. Finally, based on the status of legislation and judicial practice of our country, the author puts forward her views and discusses the reasons.The third chapter discusses the requirements and effectiveness of the settlement agreement including a nol-pros contract. Firstly, the author analyzes the elements of the settlement agreement, including the main element, object element, in the form of requirements, etc. Secondly, the author analyzed the burden of proof 、 the substantive effects and procedural effects from the dynamic of the proceedings.The fourth chapter is to negative the effectiveness of the settlement agreement from two aspects. The first aspect related that the settlement agreement may be revoked.The second aspect related that the settlement agreement are all invalid or partially invalid.The fifth chapter is to improve the legislative provisions of the settlement. The main is to recognize the consensual withdrawal and to build the action settlement system,in order to fill legislative gaps and improve alternative dispute resolution mechanism.