Problems And Perfection Of Withdrawing Prosecution System In Civil Second Instance

In 2015,the Interpretation of the Civil Procedure Law for the first time clarified that the plaintiff of the original trial enjoys the right to apply withdrawing prosecution.Since then,as an efficient and safe way to close a civil and commercial case,withdrawal of prosecution in the second instance has been increasing.However,with the increasingly widespread and complex judicial application,the problems of the second instance withdrawal system in practice are gradually exposed.Behind the chaos of practice,it reflects that there are many problems in the rationality of the rule design of withdrawing prosecution in the second instance,which need to be modified and improved in combination with the jurisprudential basis of the withdrawal system.Because there has been a judgment of first instance not yet in effect legally,when compared with withdrawing prosecution in the first instance,withdrawing prosecution in the second instance needs to consider more and deeper issues of interest balance in the design of rules.Such as how do the plaintiff’s right to apply for withdrawal,the defendant’s right to consent and the court’s right to review play their respective roles.And how to balance the plaintiff’s right to sue with protection of the defendant’s trust interests and the maintenance of procedural stability and judicial authority,etc.This paper clarifies the connotation of the civil withdrawal system and the development and changes of second-instance withdrawal system,starts the analysis of specific problems in the system construction in China and abroad,in order to improve the design of withdrawal rules and the operation of judicial practice in the second instance and other trial levels according to the thought of interest balance,ensure the systematization and integrity of the withdrawal system and promote the proper operation.The body of this paper is divided into four parts:Part Ⅰ: The development and changes in the withdrawal system in civil second instance.By clarifying the concept of withdrawal,it is obvious that withdrawing prosecution in the second instance is part of the entire civil withdrawal system.And by combing the legislative changes of second-instance withdrawal system,it is pointed out that the core problem of the second-instance withdrawal system has shifted from the permissive dispute to the specific system construction.In the specific system construction,the core problem is that it is difficult to find the balance between the full protection of litigation right and reasonable restriction.Part Ⅱ: Analysis of the problems and causes of the second-instance withdrawal system.At the normative level,the existing problems include the decisive elements of withdrawing prosecution in the second instance is unbalanced,the consequences are unreasonable and incomplete,and so on.At the practical level,problems include the inadequacy of the judge’s explanation and reasoning obligations,and the lack of clarity of the remedy for "withdrawal due to settlement" after the non-fulfillment of the settlement agreement.Part Ⅲ: Ideas for improving the civil second-instance withdrawal system.First,it needs to follow the legal basis of the civil withdrawal system.Secondly,compare and analyze the extraterritorial civil withdrawal system,summarize the commonality and individuality of the withdrawal conditions and consequences as well as the reference significance to our country,especially the withdrawal rules of different levels of trial should not be fragmented,but should be coherent and systematic.Finally,the concept of legitimacy and balance of interests which are suitable for Chinese situation as standard for the construction of second-instance withdrawal system,so as to ensure that the improvement proposals are made within the framework of balancing the interests of the parties and the court as far as possible.Part Ⅳ: The path of improving the second-instance withdrawal system.At the normative level,we should improve the rules of second-instance withdrawal system and take the systematization of the whole civil withdrawal system into account,including the reasonable configuration of the decisive elements of withdrawal of prosecution,scientific setting of the legal consequences,etc.At the practical level,we suggest that the judges should be urged to fully perform their duties of explanation and reasoning obligations by increasing the notification procedure and standardizing the content of the ruling of withdrawal of prosecution,so as to better protect the parties’ right to sue.We also need to clarify the remedy for non-fulfillment of settlement agreement after the withdrawal of prosecution due to the settlement,in order to solve the practical problems.