Civil procedure of second instance, the appellant can withdraw the prosecution? This is a frequently encountered problems in trial practice. "Civil Procedure Law" provisions of article 156th:"The people's Court of second instance before the judgment is pronounced, the appellant requests to withdraw his appeal, whether to allow the, ruled by the people's Court of second instance."And "the Supreme People's Court on the application of 'people's Republic of China Civil Procedure Law' opinions on several problems of" article190The provisions:"In the second trial procedure, the parties to apply for the withdrawal of appeal, the people's court review of that decision is wrong, or collusion to damage the interests of the parties, the state and collective social and public interests and the legitimate rights and interests of others, should not be allowed to."In two articles quoted in the court of the second instance, whether to allow the withdrawal of only aims at the appeal, whether or not to grant the approval of prosecution is not clear. In addition, "the Supreme People's Court on the application of 'people's Republic of China Civil Procedure Law' opinions on several problems of" article191A clearly defined in the procedure of second instance in litigant reconciliation with the withdrawing, withdrawal conditions, the people's court shall permit. In the trial practice, not due to the court of the second instance and the withdrawing, local practices are not the same, to sum up, in practice, the appellant second withdraw prosecution is allowed, only the following three conditions:

First, the appellant shall not be permitted to apply for the withdrawal in procedure of second instance. The reason is, the second procedure is based on the first instance procedure, if a party is not based on reconciliation and withdrawal, the withdrawal application has to evade the law, to avoid legal risk. Such as the plaintiff in the first instance when the appeal has not been in support of the court, appeal that also is not conducive to their own risk, namely the withdrawal application to the court, and in such cases, the party is held for the"Sue win ended, will never win the withdrawal"Thought, is the abuse of litigious right, if in the situation, the second party to withdraw the application to be permission, so not only is the support of the parties to the waste of judicial resources, at the same time, the other party rights are not protected, so this kind of parties to withdraw the application shall not be allowed.

Second, the withdrawal application of the appellant in the course of the second instance shall be permitted. The reason is, the withdrawal as a basic right of the litigants shall, throughout the stages of the proceedings. Just before the effectiveness of the judgment documents, the parties to apply to the courts, are to enjoy the right to dispose of the performance, so the appellant in procedure of second instance court shall be permitted to withdraw.

Third, as to the condition of the appellant in procedure of second instance trial process, which is based on the premise of the parties only reconciliation to the court for the court to permit the withdrawal. Due to this situation "Civil Procedure Law" provisions in the existing legal, without the detail.

For these three different ways of treatment, in addition to third is expressly provided, the other two in the trial practice of controversy. The author thinks that:

One, the withdrawal right is the basic rights of the parties, the free exercise of litigious right and disposing of the parties, but in the exercise of withdrawal right shall meet the following conditions: (1The withdrawing) applicants must be the plaintiff or by the plaintiff with special authorization agent. Without the capacity for action of the plaintiff, suggested by his legal agent. (2The application must be voluntary withdrawal). (3Application for withdrawal) must comply with the law, namely the withdrawal shall not violate the state, the collective or the legitimate rights and interests of others, shall not violate the public order and good customs or avoid attempting to escape the legal sanction legal. (4) applies for withdrawal shall be made before the people's court. In the four condition withdrawal must comply with, in addition to (1) is easy to judge, to (2(,)3(,)4) is difficult to define, it led to the emergence of the first and second different trial practice.

In the trial of the second instance procedure, the author thinks that we should clarify the second and first instance is the same case different trial procedure, the procedural rights of the parties and not because of the trial level change. The parties in the first instance verdict, the appeal period legal appeal, at this time, the first instance judgment result does not take effect. On the withdrawing conditions (4) applies for withdrawal shall be made before the people's court sentenced the contents, the author thinks that the sentence shall be legally effective judgment, namely the final judgment, if not, then the withdrawal right, in the first instance procedure is used, second to exercise the withdrawal right, but beyond the scope of the law, regulations and the current law does not match. So the second appeal, in fact it is still in its own right disposition, does not violate the withdrawal condition, cannot because of trial procedure is the second, which does not allow the parties to exercise the right of withdrawing an action.

Two, in the judicial practice, there exists the first practice of the party, namely that of litigation risk and unfavorable situation to circumvent the law, and may be addressed to the state, the collective or other legitimate rights and interests are damaged, its behavior belongs to the abuse of litigious right, according to the above conditions (withdrawal3), this situation exercise of withdrawal right, the court should not permit. But in judicial practice, how to distinguish the withdrawal Is it right? Voluntarily, the exercise of the right of withdrawal Is it right? Damage the lawful rights and interests of others because no specific statutory provisions and the specific measure, leading to the determination of condition became a judge in the review of the withdrawal and a big problem when the parties please, application withdrawal, only the objective form is difficult to define it is voluntary, or in the avoidance of decision could lead to lawsuits to the risk adverse. So in this case, I believe that as long as no clear evidence exists that parties have intentionally damage the legitimate rights of national, collective and others mean evidence, it shall be deemed that party is voluntary. The so-called no provisions of law that is free, without any clear provisions in the law, the freedom of citizens should be in a position higher than the legal order.

Three, in the trial practice, indeed because of his second withdrawal caused damage to the interests of the other party case, if the parties after the appeal in the second instance found on his unfavorable situations and to withdraw the prosecution in order to achieve the purpose of avoiding risk, but because there is no sufficient evidence to prove the existence of voluntary non party, Cheng mentioned before, could be identified as the withdrawal application is voluntary. At this time, the other party may lead to loss is inevitable, because of litigation expenses, such as: agency fees, transportation fees, accommodation and so on. So it should be how to deal with? The author thinks that the withdrawal of permission and not because of losses caused to the other as the limit, in this case, to protect the rights of the other party, should perfect the current legal system to guarantee, such as perfecting the system of abuse of litigious right, but in view of the current trip for non specified circumstances, a party the party is by reason of such withdrawal behavior and rights, then in granting withdrawal party damaged at the same time, the other party shall be liable for the loss of the other party, should also be in the other party as the premise to realize the burden of proof.

To sum up, the author thinks, the parties make prosecution to withdraw the application in the second instance to court of second instance, and in its own right a punishment, in the absence of sufficient evidence to prove that the withdrawal is intentionally damage the legitimate rights of national, collective and other circumstances, should be identified as when voluntary dispose of his right thing, shall be permitted. If the withdrawal behavior and other rights, the author suggests that should perfect the system of security on abuse of litigious right to other rights, in the absence of express provisions, or try to withdraw a party for withdrawal behavior themselves lead to other aggrieved scope of responsibility.