从裁量到强制:原告缺席可以按撤诉处理的制度省思

From Discretion to Compulsion:A Reflection on the System of Treating a Plaintiff's Absence as Withdrawal of the Lawsuit

原告缺席可以按撤诉处理是我国诉讼法上的独创性制度,反映了法院审判权与当事人处分权相互塑造的深层机理。从运行现状看,立法文本上的“可以”按撤诉处理在司法实践中成为“应当”,程序裁量规范演绎成强制规范。制度扩张的主观动因在于按撤诉处理能够实现诉讼程序的快速终结,从而在不同程度上满足各方主体的利益诉求,立法上缺乏约束条款为扩张提供了客观条件,我国对撤诉结案方式的政策性激励是制度扩张的现实动力。受制于司法运行的现实环境,该制度的真正缺陷不在于违背诉讼权利平等原则,而在于侵害当事人的处分权,进而造成制度的整体不效率。只有将原告两次缺席和被告同意撤诉设置为按撤诉处理的前提条件,才能制度性约束法院审判权以消减规范外因素的不当干扰,进而真正保障当事人处分权并实现纠纷实质性化解的政策目标。

The system of treating a plaintiff's absence as withdrawal of the lawsuit is an original institution in China's procedural law,reflecting the deep mechanism of mutual shaping between the court's judicial power and the parties'disposing right.From the current operational status,the legislative text's'may'treat absence as withdrawal has become'shall'in judicial practice,transforming procedural discretionary norms into mandatory norms.The subjective motivation for the expansion of this system lies in the fact that treating absence as withdrawal can achieve a rapid conclusion of the litigation process,thereby satisfying the procedural expectations of various parties to different extents.The lack of restrictive clauses in the legislation provides objective conditions for this expansion,and China's policy incentives for resolving cases through withdrawal serve as the practical driving force for the expansion of this system.Constrained by the limitations of the judicial operating environment,the true defect of this system does not lie in violating the principle of equal litigation rights,but in infringing upon the disposing right of the parties,which further leads to overall inefficiency of the system.Only by setting the prerequisites of the plaintiff's two absences and the defendant's consent to withdrawal as the conditions for treating the case as withdrawal can we institutionally constrain the court's judicial power to reduce undue interference from external factors,thereby truly protecting the disposing right of the parties and achieving the policy goal of litigation source governance.