Research On The Withdrawal System In China's Civil Litigation

Withdrawal of the lawsuit in the narrow sense refers to the plaintiff's application for withdrawal of the lawsuit to the court in a civil lawsuit,which is intended to make the court's action in the case attributable to destruction.As an important part of China's civil litigation system,the withdrawal system implements the basic principle of the disciplinary principle.This article analyzes the problem from the theoretical and practical links,and examines the withdrawal systems of the two major legal systems countries,and finds its significance for reference.It aims to propose a perfect path for China's withdrawal systems.In China,the law stipulates that the plaintiff can withdraw his case before the judgment is announced.The ambiguity of this time condition lies in the existence of court and elective judgments in China,and does not involve the period between the declaration of the judgment and the determination of the rights and obligations of the parties before the judgment is finalized.Therefore,it is more appropriate to allow the plaintiff to file a withdrawal before the defendant responds to the defense and before the verdict is determined.China's "Civil Procedure Law" explains Article 238,paragraph 2,which first introduced the defendant's consent right,which has made some progress in protecting the defendant's litigation interests.There are still some limitations.The author proposes that the exercise time of this right should be advanced in order to avoid it costing more litigation costs,and the court's powers should be appropriately weakened at this stage,and an appropriate exercise period should be imposed to balance the litigation interests of the parties.Where a civil lawsuit is closed by withdrawal,the litigation costs incurred shall be borne by the plaintiff.However,China's law stipulates that if the plaintiff withdraws the lawsuit,the litigation costs will be halved,and it does not limit the plaintiff to sue again.For this reason,it is suggested that the plaintiff's right to resue and the collection of litigation costs should be made in different situations and in different stages to avoid abuse of his rights.Quantitative standards were introduced in the provisions for handling withdrawals of litigation,strictly restricting their applicable conditions,achieving equal litigation interests of both parties,and coordinating thecourt's trial power with the parties' litigation rights.In judicial practice,there are still situations where the court's review power interferes with the party's disposition right,there is an inappropriate combination of settlement and withdrawal,and the use of irregular withdrawal rulings.In this regard,the author believes that the court's trial power should be reasonably allocated,and the substantive review power should be transformed into a form of essential requirements and legal review power to avoid prejudice to the sanction right.The settlement agreement can also be made a kind of settlement through the court's direct mediation Methods to avoid the plaintiff's multiple prosecutions in the same case to maintain lawsuit stability;the court should also reasonably regulate the withdrawal ruling,recommend to use written rulings as much as possible,and fully explain the withdrawal ruling in the ruling to ensure the justice and openness of justice.