申请撤诉制度探究

STUFY FOR THR SYSTEM OF APPLYING FOR WITHDRAWAL OF ANACTION

原告申请撤诉权是我国民事诉讼法赋予原告的一种重要诉讼权利,是原告行使处分权的体现。但是长期以来,我国理论界和司法活动均将原告申请撤诉行为等同于民事法律行为,并以是否符合民事法律行为的要件为标准来审查原告的撤诉申请。而且,我国现有的申请撤诉制度仅是以法院为中心的单一诉讼法律关系的体现,忽略了原告和被告之间已形成的争诉法律关系。上述错误认识既损害原被告双方的利益,也有违民诉平等原则。因此,有必要在争诉法律关系和审判法律关系的层面重构申请撤诉制度。

The plaintiff’s right to apply for withdrawal of an action is an important litigation right endowed by Chinese civil litigation law. The behavior of applying for withdrawal of an action is regarded as civil legal behavior in the trial process and is reviewed by the standards of the civil legal behavior. Moreover, the current system of applying for withdrawal of an action is only indicative of the single legal relationship centering the court, and ignores the contesting relationship that has come into being between the plaintiff and defendant. The above mistake not only damages the interests of the two parties, but also violates the principle of equality in the civil litigation. As a result, it is necessary to reconstruct the system of applying for withdrawal of an action on the dimension of both the trial relationship and the contesting relationship.