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Study on Civil Action Withdrawing System

Author: LiuLinWei
Tutor: FuDongMei
School: Inner Mongolia University
Course: Legal
Keywords: civil action withdrawing system the jurisprudential basis comparison present situation reconstruction
CLC: D925.1
Type: Master's thesis
Year: 2009
Downloads: 76
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Abstract

Civil action withdrawing system is widespread in civil action system. in our judicial practice, Withdrawing is an important way of closing a case. As a result of our country current《CIVIL PROCEDURE LAW》, there is no clear characterization of withdrawing, legal provision is defective, and the plaintiff withdraws arbitrarily, this violates seriously the principle of equality of the parties right of action. The plaintiff withdraws the subject should be the reviewed substantively by the court, else the right to dispose of the parties will be violated seriously and the court will be not neutral. In addition, because the prosecution after withdrawing has no restrictions, withdrawing is abused by the plaintiff and judges in practice, this seriously impacts the stability and efficiency of the proceedings.This text begins with the concept of withdrawing system, defining the three elements of withdrawing, analyzing the nature of withdrawing, explanating the legal basis of the withdrawing system, explanating civil action withdrawing system compared to other some countries and regions , makes an objective analysis of status and problems in our country civil action withdrawing system, and puts forward a new idea of system of civil action withdrawing system. Finally, this text puts forward legislative proposals to improve our withdrawing system in the form of the law. This text is totally divided into 5 parts, chapter 1 is overview of the withdrawing system. Firstly, defining the concept of withdrawing ,then defining the three elements of withdrawing, which are the main element, the objective element and time element. Thirdly analyzing the nature of withdrawing , pointing out that withdrawing is a litigation proceedings behavior , being created at the end of procedural law by the plaintiff is a unilaterally. Chapter 2 is the legal basis of withdrawing system, analyzing theoretical support from protecting 4 aspects ,such as litigious right of the parties theory, the parties right of action theory, procedures and stability theory, the main theory . Of the legal basis of the system dropped, providing a theoretical support to reasonable construction of the system . Chapter 3 is comparison between different civil withdrawing system, introducing two Legal representation of countries and their own civil withdrawing system , and giving a briefing on China’s current civil withdrawing system. It points out that China’s civil withdrawing system is similar to two legal major countries in the withdrawing main body , else is different to two Legal major countries in 5 sides, such as that the plaintiff withdraw agree with the defendant also analyzes the causes. Chapter 4 is about the status and existing problems of our civil withdrawing system , summing up there is 5 questions in our country civil withdrawing system after expatiating the legislature and the judiciary of our civil withdrawing system of the present situation. Chapter 5 is about our civil withdrawing system. To solve the above problems, we suggest six perfect measures based on comparative law and the inspiration theory. Finally, based on a comprehensive analysis of the above discussion, we suggest clearly proposed changes to the withdrawing system in the civil proceedings drop by the way of laws.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Civil Procedure Law
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