Study on Civil System of Action Withdrawal in China
|School||Zhejiang University of Technology|
|Keywords||civil withdrawal principle of disposition right of withdrawal doctrine of equal litigious rights of the parties procedure stabilization|
Withdrawal is an important party right of action. Based on theprinciple of disposition, the parties have the right within the statutoryscope of their own civil rights and litigation rights. Withdrawal of theparties to exercise right of disposition of a specific performance, the courtshould respect and protect the right of the parties to exercise withdrawal.By the court of appeal in terms of the parties is subject to withdrawal ofthe statutory civil court where the end of one of the ways. Effect occurredafter the withdrawal of the case proceedings will come to an end, thecourt closed for withdrawal could be due to the parties. Withdrawing theestablishment and application of the system, not only the rights of partiesto dispose of its litigation with the appropriate system security, but also tothe people’s court to be in full respect for and protection of the rights ofparties to litigation based on the rational use of limited judicial resources,avoid unnecessary proceedings to continue and improve the overallefficiency of the proceedings. However, our system of civil withdrawal deviation of values exists, the court of jurisdiction over the withdrawal ofthe intervention, the interests of the defendant lacks the necessaryprotection mechanisms, and withdrawal of setting the rules of procedureis relatively crude, resulting in judicial practice revealed some seriousproblems. In this paper, the civil withdrawing system of the basic legaltheory as a starting point, from a comparative law point of view offoreign civil withdrawing system of common principles and usefulexperience for civil withdrawal system status to re-examine and putforward reform and improve the specific suggestions and ideas. Besidesthe introduction and conclusion, the paper is divided into four parts.Part I: Overview of civil withdrawal system. The concept ofwithdrawal is in the people’s court accepts the case, the decision for sure;the status of the plaintiff and the plaintiff’s action is equivalent to thebehavior of the parties to be brought to the Court of Appeal to withdrawthe legal action. Withdrawal of legal action in the nature of contracts, notlitigation, is a withdrawal made by the plaintiff to the court; unilateral,procedural law only produces effects on the end of the litigationproceedings behavior. Withdrawal of the parties the right to dispose of inthe nature, the theory is based on the principles of civil procedure inaction, according to the requirements of the principle of punishment, theright of withdrawal should be fully respected and protected, but thewithdrawal right is not absolute, should also be subject to the jurisdiction the necessary supervision to ensure the stability and litigationproceedings Benefit Value objectives.Part II: Outside the system of the civil withdrawal. This part of thefirst study from the British legislation, the United States, Germany,France, Japan and major countries of China and Taiwan, two legalsystems of civil withdrawal, the study mainly from the withdrawal form,complete the legal effect, and several other elements and aspects.Secondly, withdrawal from the national system of civil common point ofview, withdrawal of court cases for a very broad; withdrawal of anapplication in writing, based on the principle, while the debate in the trialalso allows specific areas such as orally; defendant or appalled in aparticular stage of the withdrawal of the defense have the right; thewithdrawal of the legal effect of the general performance of the end of theproceedings, while not losing the right to appeal but the plaintiff shallbear the cost of litigation. Overall, the national system of universal civilwithdrawal is based on the withdrawal of the right of the parties to fullyrespect and protect the above rights by the parties and the right balancebetween the setting and to ensure action against the justice system ofcountries in civil construction is not only to consider withdrawal to set thedemocratic process and fairness, but also should take into account therequirements of the program’s stability - the premise of protecting theright of withdrawal, the withdrawal restrictions were frequently brought the same action, above the useful experience of foreign countrieswithdrawal system of civil sound has a great reference value.Part III: Review of the system of civil withdrawal. Withdrawal of thecivil justice system in practice has been more widely used, withdrawal ofthe importance of the system is self-evident, but also exposed a lot ofjudicial practice inherent in the current withdrawal of the system flawsand vulnerabilities. On the one hand, withdrawal did not really litigantsby the court as a right to treat the withdrawal process of the Court’sintervention is quite prominent super-powers; the other hand, the rights ofindividual parties to the abuse of withdrawal, frequent start proceedings,resulting in a limited judicial wasting a lot of resources. Withdrawal ofthe existing system of civil performance of the main issues: the trial courtauthority and the procedural rights of the parties to set a seriousimbalance in the system of legislation on civil withdrawal to the court’sreview powers are too broad and lack of appropriate control mechanism;rights and litigation between the parties unequal status, the lack ofeffective protection of legal rights the defendant; processing system bysetting unreasonable withdrawal; again after withdrawal of prosecutionagainst the plaintiff lacked the necessary regulations; court ruled that thelack of regulatory and other withdrawal.Part IV: Reform of civil and improvement of withdrawal.Rehabilitation and reconstruction of the litigation process is the withdrawal of balance and balance system of the most fundamentalstarting point, withdrawal of the civil reform and improve the systemshould first adhere to three basic guiding principle that the mainprinciples of procedure, the parties benefit principle of equality and theprinciple of action. On this basis, the system reform and improve thespecific ideas of civil Withdrawal: withdrawal of the subject is clearly thestatus of the plaintiff and the parties representing the plaintiff, to extendthe time frame for withdrawal, withdrawal time frame will determine theadmissibility in court after the verdict before the commencement;withdrawal of the substance of the court to cancel the veto, but reservesthe right to review the form, and weaken the Court’s intervention in termsof strengthening and fully protect the parties withdrawal rights; areasonable balance between the rights of the parties configuration, givingthe defendant the right side after the withdrawal of the real defense theConsent Right to equal protection of the legitimate interests of thedefendant; norms determine the form and content of the withdrawal,withdrawal decision shall be in writing in the form of principles, andserved on the parties litigant, shall be allowed for withdrawal of thedetailed legal basis for the decision and reasons; reform by withdrawal oftreatment system, so coordination with the absence of the trial system,only the parties are without good reason refuse to appear or withdrawstreatment by withdrawal; adjust the litigation fee system, the application for withdrawal of the litigation process in accordance with the differentphases in proportion to the collection, according to withdrawal of casesthe cost of litigation should be in full charge; clear withdrawal withoutinterruption after the statute of limitations, and appropriate restrictions onthe plaintiff sued again after withdrawal.