对民事二审中撤回起诉的再认识

The Recognition on Standpoint Withdrawal in the Second Instance of Civil Litigation

在第二审程序中原审原告能否撤回起诉,是民事诉讼立法没有明确规定的问题,学理上有不同的观点,实务中也有不同的处理方式。民事诉讼法司法解释第338条从尊重当事人处分权的角度出发,允许原告在征得其他当事人同意且不损害国家利益、社会公共利益与他人合法权益的前提下撤回起诉。但同时规定原告撤回起诉后重复起诉的,不予受理。遵循民事诉讼法理与有效解决纠纷的现实需要,应依据案件类型来分设不同的规则,即禁止原告对财产性质的案件再行起诉,对人身关系的案件,则允许原告再次起诉。无条件地允许原审被告另行起诉也不尽合理,应斟酌具体情况来决定。

Whether the plaintiff in the original trial can withdraw a prosecution in the procedure of the second trial is not clearly defined in the legislation of civil litigation, and there are different opinions in theory and different handling methods in practice. Article 338 in the Judicial Interpretation of Civil Procedure Law permits the plaintiff to withdraw the prosecution with the approval of the defendant and without damaging national interests, public interests and others＇ legal interests form the perspective of respecting the parties＇ fight of disposing. However, it also stipulates that the prosecution which has been withdrawn by the plaintiff will not be accepted again. With the realistic demand of legal theory of civil litigation and effectively solving disputes, it is necessary to establish different rules according to the case type, that is, prohibiting the plaintiff to prosecute an action on properties again, while the repeated prosecution for the case on personal relation by the plaintiff is permitted. It is unreasonable to permit the defendant in the original trial to prosecute separately without conditions, and it should depend on specific details.