民事撤诉制度之检讨与完善

Examination and Perfection of the Institution of Withdrawing a Civil Action

为实现对当事人申请撤诉的程序保障和制约法官权力滥用的双重目的 ,应重新构建我国的撤诉制度。首先 ,应取消人民法院对申请撤诉的实质否决权 ,只保留形式审查权 ,克服实践中不当干预当事人撤诉权的弊端 ,也与拟制撤诉制度相协调。其次 ,赋予被告在一定条件下对原告撤诉的否决权 ,克服我国民事诉讼法单一许可撤诉制度的弊端 ,保障被告的程序利益。第三 ,健全撤诉程序 ,规范当事人行使撤诉权。为此 ,建议将现行民事诉讼法第 54条、 59条、 131条、 156条予以修改 ,并增补对人民法院审查撤诉申请的期限规定 。

In order to serve the double purposes of offering the procedural guarantee for the litigant applying for the withdrwal of a lawsuit,and restricting the judges indiscriminate enforcement of the law,our countrys institution of withdrawing a lawsuit should have to be reconstructed.Firstly,the substantive veto of the peoples court to the application for dropping a lawsuit should be called off,only with the nominal right to examine retained,so as to overcome improper interference with the litigants right to drop a lawsuit,and to coordinate with the proposed institution of withdrawing a lawsuit.Secondly,the accused should be given the veto which he or she will exercise in specific conditions to the plaintiffs withdrawing the lawsutit,so as to get over malpractices of the unitary rule of permitting dropping a lawsuit in our countrys existing civil procedural law,and to ensure the procedural interest of the accused.Thirdly,amplify the procedure of withdrawing a lawsuit and normalize the litigants exercise of the right to drop a lawsuit.In this connection,revision should be made to such articles as Nos.54,59,131 and 146;the time limit should be set for the peoples court to finish examining the application for dropping a lawsuit,and regulations should be laid down on the effectuality of a coerced or compelled withdrawal of a lawsuit. [