论我国民事二审程序中原审原告的撤回起诉权
发布时间：2018-08-06 17:39
【摘要】：撤诉作为当事人行使处分权的一种诉讼行为，是当事人意思自治在诉讼程序中的一种体现。因此，为了尊重和彰显当事人在民事诉讼中的主体地位，无论在我国还是在世界各国民事诉讼理论中，撤诉制度都是一项极为重要的诉讼制度。在我国，由于立法的不充分和不完善，我国的民事撤诉制度还存在许多的缺陷与不足，其中二审中原审原告是否享有撤回起诉权问题一直以来都是理论界和司法实务部门存有争议的话题。无论是2012年最新修订颁布实施的新《民事诉讼法》还是此前的旧法，立法上都没有予以明确规定。有鉴于此，本文由两个司法实务案例在审理过程中所引发的一系列程序性问题出发，进而对我国民事二审程序中的原审原告是否应当享有撤回起诉权问题进行了全面而系统的探讨，以期在今后立法对于我国民事撤诉制度的完善及指导具体司法实务操作有所帮助。 本文除引言和结束语之外，分为以下四部分，总共两万五千字左右： 第一部分是“问题的提出——两个案件引发的法律思考”。这部分首先由两个司法实务案例在审理过程中因原审原告申请撤回起诉引发的一系列程序性问题出发，指出审判实践中存在着几种不同的观点和处理意见，进而点出案件背后所折射出的法律问题，即民事二审中原审原告是否具有撤回起诉权问题。 第二部分是“民事撤诉制度的基本问题”。民事二审中原审原告是否享有撤回起诉权的问题毕竟是在我国民事撤诉制度背景下，对我国民事撤诉制度中存在的诸多不足和缺陷所提出的一种细问，对之加以探讨和分析自然离不开撤诉制度理论的支撑。这部分，笔者对撤诉制度的基本理论、我国民事撤诉制度立法现状及民事二审中能否撤回起诉问题在现实中所面临的司法困境进行了简单的介绍和阐述，为下文针对这一问题提出具体的完善之策提供理论和现实依据。 第三部分是“域外立法关于民事二审中原审原告撤回起诉权的比较考察”。他山之石，可以攻玉。这部分主要简介了大陆法系中德国、日本及我国台湾地区相关立法现状，通过比较分析域外立法经验，为我国完善撤诉制度的立法，，解决二审中原审原告能否撤诉问题提供借鉴和参考。 第四部分是“我国民事二审中原审原告撤回起诉权之管见”。这部分笔者首先对目前我国学界关于二审中原审原告能否撤回起诉这一问题所持的争议观点进行了简单的梳理并且从学理上作了一些简要评析和探讨，肯定可取之处，分析论证不足之处，提出了笔者自己的观点即我国民事二审中应当允许原审原告在二审中撤回起诉，但也应当完善一些配套的制度设计以实现对其二审撤回起诉权的限制适用。最后从制度设计层面对我国民事二审中原审原告撤回起诉权的正当程序性构建提出了一些具体的完善之策。
[Abstract]:Withdrawal as a litigant to exercise the right of disposition is a manifestation of party autonomy in the proceedings. Therefore, in order to respect and highlight the principal position of the parties in the civil action, the withdrawal system is an extremely important litigation system in both China and other countries in the world. In our country, due to the inadequacy and imperfection of the legislation, there are still many defects and deficiencies in the civil withdrawal system of our country. Whether the plaintiff of the original trial has the right to withdraw the prosecution in the second instance has always been a controversial topic in the theoretical circle and the judicial practice department. Neither the new Civil procedure Law, which was enacted in the latest revision in 2012, nor the old laws have been explicitly legislated. In view of this, this paper starts from a series of procedural problems caused by two cases of judicial practice in the course of trial. Then, the author makes a comprehensive and systematic discussion on whether the plaintiff of the original trial should enjoy the right of withdrawing the prosecution in the civil second instance procedure of our country. It is expected that the legislation will be helpful to the perfection of the civil withdrawal system and the guidance of specific judicial practice in the future. In addition to the introduction and concluding remarks, this paper is divided into the following four parts, a total of about 25000 words: the first part is "the question raised-the legal thinking caused by two cases". This part begins with a series of procedural problems arising from the withdrawal of the plaintiff's application for prosecution during the trial of two judicial practical cases, and points out that there are several different views and opinions on handling the case in the trial practice. Then points out the legal problems reflected behind the case, that is, whether the plaintiff of the original trial has the right to withdraw the complaint in the civil second instance. The second part is the basic problems of the civil withdrawal system. After all, the question of whether the plaintiff of the original trial enjoys the right to withdraw the complaint in the civil second instance is, after all, a detailed question on the shortcomings and defects of the civil withdrawal system in our country under the background of the civil withdrawal system. To explore and analyze the system can not be separated from the support of the withdrawal system. In this part, the author briefly introduces the basic theory of the withdrawal system, the current legislative situation of the civil withdrawal system in China and the judicial dilemma that the issue of withdrawing the prosecution in the civil second instance faces in reality. To provide theoretical and practical basis for the following suggestions to solve this problem. The third part is the comparative investigation on the right of the plaintiff to withdraw the prosecution in the civil second instance. The stone of other mountains can attack jade. This part mainly introduces the current legislation situation of Germany, Japan and Taiwan in the civil law system, through comparative analysis of the extraterritorial legislative experience, for our country to improve the system of withdrawal legislation. To solve the second instance plaintiff can withdraw the issue of reference and reference. The fourth part is the opinion of withdrawing the plaintiff's right of action in civil second instance in our country. This part of the author first of all on the current academic circles of our country on the issue of whether the plaintiff in the original trial can withdraw the prosecution of the dispute held a simple combing and from the theory of some brief comments and discussions, definitely the desirable place. By analyzing the inadequacies of the argumentation, the author puts forward his own viewpoint that the plaintiff of the original trial should be allowed to withdraw the suit in the second instance in our country, but some supporting system designs should be perfected to realize the limitation of the right to withdraw the prosecution in the second instance. Finally, from the aspect of system design, the author puts forward some concrete and perfect measures to construct the proper procedure of withdrawing the plaintiff's right of action in the civil second instance of our country.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.1
本文编号：2168484
[Abstract]:Withdrawal as a litigant to exercise the right of disposition is a manifestation of party autonomy in the proceedings. Therefore, in order to respect and highlight the principal position of the parties in the civil action, the withdrawal system is an extremely important litigation system in both China and other countries in the world. In our country, due to the inadequacy and imperfection of the legislation, there are still many defects and deficiencies in the civil withdrawal system of our country. Whether the plaintiff of the original trial has the right to withdraw the prosecution in the second instance has always been a controversial topic in the theoretical circle and the judicial practice department. Neither the new Civil procedure Law, which was enacted in the latest revision in 2012, nor the old laws have been explicitly legislated. In view of this, this paper starts from a series of procedural problems caused by two cases of judicial practice in the course of trial. Then, the author makes a comprehensive and systematic discussion on whether the plaintiff of the original trial should enjoy the right of withdrawing the prosecution in the civil second instance procedure of our country. It is expected that the legislation will be helpful to the perfection of the civil withdrawal system and the guidance of specific judicial practice in the future. In addition to the introduction and concluding remarks, this paper is divided into the following four parts, a total of about 25000 words: the first part is "the question raised-the legal thinking caused by two cases". This part begins with a series of procedural problems arising from the withdrawal of the plaintiff's application for prosecution during the trial of two judicial practical cases, and points out that there are several different views and opinions on handling the case in the trial practice. Then points out the legal problems reflected behind the case, that is, whether the plaintiff of the original trial has the right to withdraw the complaint in the civil second instance. The second part is the basic problems of the civil withdrawal system. After all, the question of whether the plaintiff of the original trial enjoys the right to withdraw the complaint in the civil second instance is, after all, a detailed question on the shortcomings and defects of the civil withdrawal system in our country under the background of the civil withdrawal system. To explore and analyze the system can not be separated from the support of the withdrawal system. In this part, the author briefly introduces the basic theory of the withdrawal system, the current legislative situation of the civil withdrawal system in China and the judicial dilemma that the issue of withdrawing the prosecution in the civil second instance faces in reality. To provide theoretical and practical basis for the following suggestions to solve this problem. The third part is the comparative investigation on the right of the plaintiff to withdraw the prosecution in the civil second instance. The stone of other mountains can attack jade. This part mainly introduces the current legislation situation of Germany, Japan and Taiwan in the civil law system, through comparative analysis of the extraterritorial legislative experience, for our country to improve the system of withdrawal legislation. To solve the second instance plaintiff can withdraw the issue of reference and reference. The fourth part is the opinion of withdrawing the plaintiff's right of action in civil second instance in our country. This part of the author first of all on the current academic circles of our country on the issue of whether the plaintiff in the original trial can withdraw the prosecution of the dispute held a simple combing and from the theory of some brief comments and discussions, definitely the desirable place. By analyzing the inadequacies of the argumentation, the author puts forward his own viewpoint that the plaintiff of the original trial should be allowed to withdraw the suit in the second instance in our country, but some supporting system designs should be perfected to realize the limitation of the right to withdraw the prosecution in the second instance. Finally, from the aspect of system design, the author puts forward some concrete and perfect measures to construct the proper procedure of withdrawing the plaintiff's right of action in the civil second instance of our country.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.1
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