设定与限制:论民事上诉审中的撤诉

Confirmation and Restriction:Theory on Withdrawal in the Appeal for the Civil Procedure

无论从解释论概念的应有含义出发,还是基于制度目的等考量,撤回上诉都不能等同上诉审中的撤诉,前者也不能涵盖或替代后者。否定上诉审撤诉制度的独立性或将两者混同,不仅有违民事诉讼处分权主义的基本要求,也造成我国司法实务的难题与困境。基于民事诉讼处分权原则的完整性要求,必须在撤回上诉制度之外单独设定上诉审的撤诉制度。与此同时,基于当事人平等原则、诉讼经济等因素考量,应当在撤诉要件与撤诉的法律效果方面限制原告在上诉审中的撤诉。

Whether in terms of the proper meaning of the concept, or based on the consideration of in- stitutional purpose, abandonment of the appeal should not be understood as equivalent to the voluntary dismissal in the appeal. The former could neither cover nor replace the latter. To deny the voluntary dis- missal system in the appeal or to intermingle it with the abandonment of the appeal is contrary to the doc- trine of disposition and will lead to problems and dilemmas in judicial practice. The dismissal system in the appeal must be set up separately in addition to the system of abandonment of the appeal, which is re- quired by the integrity of the doctrine of disposition. However, based on the principle of equality of the parties and litigation economic considerations, we should consider and restrict the voluntary dismissal in the appeal, in the aspects of dismissal factors and its legal effects.