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CHINA LEGAL SCIENCE 2019年第5期 | 民事撤诉中被告同意权的规范异化与制度矫正
日期:20-03-28 来源:CHINA LEGAL SCIENCE 2019年第5期 作者:zzs

DEVIATION AND CORRECTION OF THE REGULATION ON DEFENDANT’S RIGHT TO CONSENT IN CIVIL WITHDRAWAL


Tang Yufu


To protect the citizens’ legitimate civil rights from being violated or deprived is both the fundamental purpose of civil litigation and the core of the regulation on the theoretical and institutional construction of the civil litigation. The citizens’ autonomy in exercising their private rights embodied in such purpose and core has been extended and applied into the civil procedure and transformed into the concept supporting civil litigation, disposition doctrine. The parties are granted the freedom of disposing their civil substantive rights and, more extensively, the right to go through or to abandon civil proceedings. As a procedural mechanism manifesting the above mentioned dual features of the disposition doctrine, the civil withdrawal system has been established in the modern civil procedural law. The Civil Procedural Law is not an exception. However, the provisions on the civil withdrawal system are not as specific as those on the system of filing civil cases, resulting in the considerably serious imbalance of interests and the disorder in regulating the court’s exercising its solely enjoyed power to examine civil withdrawal. To solve these problems, the defendant’s right to consent is introduced into article 238 of the Interpretation on the Application of the Civil Procedure Law of the People’s Republic of China (hereinafter referred to as the Interpretation on Civil Procedural Law), which is developed into a two-prong procedural construction of the defendant’s consent and the court’s final decision, and, to a great extent, promotes significant changes in the civil withdrawal system. However, new judicial interpretation on such systematic planning of the defendant’s right to consent has brought about the possibility of regulation deviation and weakness of functions in many aspects instead of purification of rights, which need reflection and correction.


I. ADOPTING DEFENDANT’S RIGHT TO CONSENT INTO THE CIVIL WITHDRAWAL SYSTEM


Withdrawal of a case refers to the litigation act through which the plaintiff, after filing a case, manifests his willingness to the court to withdraw all or some of his claims and no longer requests the court to render a final judgment on his case. In its nature, withdrawal of a case is a litigation act and a systematic planning of synthetic nature, through which the parties take the initiative to end the litigation proceedings by exercising their right of disposition after the case is accepted and to be decided by the court. To be synthetic in nature means, that the withdrawal system is a legal technique with both procedural content and substantive content. The withdrawal system is of procedural nature. Whether from the perspective of the systematic planning or from the perspective of legal effect, generally speaking, it will not change the substantive rights and obligations. Once the plaintiff withdraws his case, the court proceedings will be ended, and the legal status before the filing of the case will be restored. Under certain circumstances, withdrawal of a case can have the legal effect of suspending the limitations of action and changing the substantive rights and obligations, which functions as a substantive legal technique.


For such a reason, the Civil Procedural Law explicitly provides the withdrawal system and has not been changed in a considerably long period of time. However, the legal provision that the court can unilaterally decide on the justification of withdrawal of a case has been criticized by more and more people. As a result, reflection on and reform of the withdrawal system has become an important task to the modernization of civil procedure. Against this background, it has become a consensus in the academic circle to retrieve and introduce the defendant’s right to consent commonly established in the civil procedural law of other common law and civil law countries, which has formally recognized by the Interpretation on Civil Procedural Law. To a certain extent, the introduction of the defendant’s right to consent has changed the mode of operation of the civil withdrawal system, and significantly changed and improved the civil withdrawal system of our country as well. 


A. The Withdrawal System in the Provision and in Practice: Unilateral Decision vs. Shared Interests


Article 145 of the Civil Procedural Law is the legal ground of the civil withdrawal system. Its first paragraph adopts the provision of article 131 of the former Civil Procedural Law: ‘If a plaintiff applies for withdrawal of the case before the judgment is pronounced, the people’s court shall decide whether to approve or disapprove it.’ From the provision in article 145, the logic in the operation of the civil withdrawal system can be seen clearly, that is, the plaintiff’s application for withdrawal of his case→the court’s decision approval or disapproval of such application. Here are at least three implications. First, although the plaintiff is entitled to procedural options to withdraw his case, he cannot unilaterally control the consequence of his procedural choice. Second, the court is the judgement maker and decision-maker of the justification of plaintiff’s withdrawal and solely exercises its ultimate discretion in the withdrawal system. Third, the defendant plays no role in the withdrawal system and interests balancing and is completely excluded from such system. In short, in terms of provision, the Civil Procedural Law adopts the mode of the court’s unilateral decision on the withdrawal of cases, which permeates and shows the court’s intervention in civil litigation.


The mode of the court’s unilateral decision on withdrawal of cases means that the court conducts substantive examination on the plaintiff’s application for withdrawal of his case and exclusively exercises its discretion on approval or disapproval of such application. The main legislative purpose of such mode is to ensure the justification of the plaintiff’s withdrawal and to avoid violation of the state interests and the legal rights and interests others by unjustifiable withdrawal. This implies that the defendant completely loses his chance to express his opinions in the withdrawal proceeding, which objectively makes it easier for the court to approve the plaintiff’s withdrawal. Once such easiness is closely combined with the court’s preference in judicial practice of approving the withdrawal of cases, they will certainly work together and jointly cause an abnormally high rate of withdrawal. Statistics show that 11,651,363 civil cases of the first instance were settled in the courts all over the country in 2017, among which 2,796,436 cases were withdrawn, with the withdrawal rate of 24 percent. The withdrawal rate of civil cases of the first instance settled by the courts in Guangdong Province remains about 20 percent in the recent eight years (See Table 1), so is the withdrawal rate of the civil cases of the first instance settled by the court of Wanzhou District in Chongqing in recent three years. The withdrawal rate in 2013 was 20.94 percent, 22.41 percent in 2014, and 24.21 percent in 2015.

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The strong preference of judges in approving withdrawal of cases is reflected by the continuously high withdrawal rate results from the combination of multiple factors. For one thing, as one way of settlement formally recognized by the court, compared with judgment or mediation, withdrawal has incomparable advantages. The workload of the court is greatly reduced because ruling on the withdrawal application can be made without complicated facts finding and law applying and is simple to make. What is more, the parties have no right to appeal against the ruling on withdrawal, which makes the court free from being reviewed or corrected by the higher court and consequently avoid the risk of taking responsibility for wrongful ruling on cases. For another, withdrawal rate is the main part of the complicated court’s performance assessment index system, which, as a baton, urges or forces the judges of the courts at all levels to use various means to make plaintiffs agree to settle cases through withdrawal so as to reach or even exceed the withdrawal rate set up by the courts.


Undoubtedly, the mode of the court’s unilateral decision on approval or disapproval of withdrawal of cases provides good conditions for judges’ preference of withdrawal and creates the judicial atmosphere where judges encourage or persuade plaintiffs to withdraw their cases. Judges who enthusiastically prefer withdrawal have become dissatisfied with exercising their discretion in a passive way to approve withdrawal of cases upon the plaintiff’s application. Instead, they use various means to persuade or force the plaintiff to exercise his right to withdraw his case. In some cases where a judgment should be rendered against the party who fails to bear his burden of proof because the essential facts cannot be proved, the judge persuades the plaintiff to withdraw his case in order to avoid rendering such a judgment; in some other cases where facts are not clear or evidence is insufficient, the judge pretends to dismiss the case in order to force the plaintiff to withdraw his claims. There are numerous other similar cases. As a result, the logic of the operation of the withdrawal system is deviated as follows: the court persuades the plaintiff to withdraw his case→the plaintiff applies to withdraw his case→the court approves the plaintiff’s application to withdraw his case, and this has deviated to a great extent from the ‘no trial without complaint’ principle of the civil procedural law. Consequently, the court seldom disapproves the plaintiff’s application for withdrawing his case. The court conducts simple formality examination rather than substantive examination on the justification of the plaintiff’s withdrawal. 


B. Defendant’s Right to Consent: The Proper Way to Resolve the Predicaments in the Withdrawal System


Civil litigation is the role assignment system and the right relief channel, which are developed with coordination and collegiality of the plaintiff, the defendant, and the court. All the institutions are made to secure the proper procedural arrangement among the three litigious subjects and proper balance between the rights of the parties and the power of the court. From a restricted point of view, the static legal provision and the dynamic operation of the civil withdrawal system of our country are filled with the plaintiff’s right to withdraw his case and the court’s unilateral discretion and the interests shared between the two. There has never been the reserved procedural role of the defendant. As a result, it is impossible to construct the horizontal limitation of the defendant on the plaintiff. It is because of the lack of the defendant’s role in the withdrawal system and the indifference to the procedural interests that ‘the control of the litigious subjects on procedures is not balanced.’


It is well known that the plaintiff has the initiative to commence or to end the civil procedure while the defendant is in a passive defensive position. Implementation of a case-filing registration system makes it more possible to have the defendant involved passively into the civil litigation. After the case is accepted and to be decided by the court, the defendant will definitely take countermeasures against the plaintiff’s claims and attacks by making necessary defensive preparations in terms of factual issues, evidence, and legal issues or procedural issues, and wish to have the case settled by the court’s judgment in his favor. If the plaintiff unilateral withdraws the case without the defendant’s consent, the procedure subjective status of the defendant will completely be ignored, and the efforts and cost of the defendant will be greatly diminished. What is more, ruling on withdrawal cannot settle the case. Since there is no specific provision on the number of times of withdrawal, the plaintiff can file a separate case after the withdrawal and the defendant will be involved in the suit twice or many times for defence with costs. The lack of a necessary cost compensation mechanism further makes it more possible for the plaintiff to achieve the improper goals of attacking the defendant or damaging his reputation. Consequently, the withdrawal system is deviated and becomes an institutional tool by which the plaintiff can achieve his improper goals. In China, it is usually believed that the problem of the withdrawal system results from the absolute discretion of the court on withdrawal of the case. In a certain degree, what is ignored is the deviation of the regulation caused by plaintiff’s abuse of his withdrawal right. In fact, the main crux of the problem in the civil withdrawal system is the lack of effective regulation on the plaintiff and the court and the lack of detailed and visible rules on the application of procedures.


So far, it has been universally agreed that the defendant should be granted the status of procedural subject and the right to consent to the plaintiff’s withdrawal. Such status and such right have been included in the civil withdrawal system. Paragraph 2 of article 238 of the Interpretation on Civil Procedural Law provides: ‘Where the plaintiff applies for withdrawing the case upon the conclusion of court debate, the people’s court may decide to disapprove the said application if the defendant objects.’ Article 338 of the Interpretation on Civil Procedural Law also has similar provision that the plaintiff to the original proceedings applies for withdrawing the case during the second instance proceedings has to be consented to by the defendant thereto. It can be said bluntly that the defendant’s right to consent has been formally adopted by the civil withdrawal system to safeguard, in different dimensions, the plaintiff’s right to withdraw his case and the proper use of the court’s discretion.


In its nature, the defendant’s right to consent is the defendant’s legal procedural option to give consent to the plaintiff’s withdrawal application. Facing the withdrawal application of the plaintiff, the defendant who has been prepared for the action has two choices: one is to give consent to the plaintiff’s withdrawal application, and therefore, to end the court proceedings; the other is to object to the plaintiff’s withdrawal application and to go through the court proceedings. Most of the defendants would like to make the first choice and give consent to the plaintiff’s withdrawal application. Once the consent is given, the defendant will not be troubled by the civil litigation and pay tangible and intangible costs. However, the defendant will have to accept the consequences brought about by his exercising of the right to consent, that is, the possibility of plaintiff’s filing a separate case with the court. In some cases, the plaintiff applies to withdraw the case where the essential facts are found out. At that moment, instead of ending the court proceedings immediately, the defendant actually would rather continue with the action and have the civil dispute settled once and for all by having the substantive rights and obligations decided through the final judgment of the court. The provision of article 238 of the Interpretation on the Civil Procedural Law has two aspects: the defendant’s right to consent and objection right, which is habitually referred to as the defendant’s right to consent with positive meaning.


To adopt the defendant’s right to consent into the civil withdrawal system is a critical step for the withdrawal system of our country to be standardized and modernized. Once the plaintiff files an application for withdrawal, the court cannot unilaterally decide to approve the application as what it could do before. It has to ask for the defendant’s consent. Evidently, the defendant’s right to consent imposes limitations both on the improper withdrawal of the plaintiff through horizontal control and on the arbitrariness and absolutization of the court’s discretion to approve the plaintiff’s withdrawal application through vertical control. To the former, when the defendant finds out that the plaintiff withdrawal is not justified, his consent to such withdrawal will make him free from the continuously troublesome litigation and show his involvement in the withdrawal process substantively. Where the plaintiff withdraws his case to avoid unfavorable litigation result or to willfully cause damage to the defendant or drag him down, the defendant’s objection to the plaintiff’s withdrawal will be a harsh blow to the plaintiff’s abuse of the withdrawal right. To the latter, to adopt the defendant’s right to consent between the plaintiff’s withdrawal right and the court’s discretion will restrain the court’s desire for persuading or forcing the plaintiff to withdraw, reduce the possibility of conspiracy for interests between the plaintiff and the court, and urge the court to exercise its discretion to approve the plaintiff’s withdrawal in a proper and timely manner. In general, to attach importance to the defendant’s right to consent will inevitably strengthen the subjective status of the defendant in the civil withdrawal system, redress the imbalance in the allocation of rights among the litigation subjects in the civil withdrawal system, and construct a more balanced relationship among the litigation subjects.


II. NORMATIVE ALIENATION AND RESTRICTIVE APPLICATION OF THE DEFENDANT’S RIGHT TO CONSENT


Institutionalization of the defendant’s right to consent makes effective changes to the plaintiff’s abuse of his withdrawal right, the interests shared between the plaintiff and the court in raising the withdrawal rate, indifference to the subjective status of the defendant and his interests in procedure, and the roles and the relationship in the civil withdrawal system. However, it has to be admitted that such changes are limited in fact and not the fundamental institutional reform. The main reason is that the adoption of the defendant’s right to consent in the Interpretation on Civil Procedural Law neither grants to the defendant an absolute position to independently control the withdrawal consequences nor makes him free from the subsequent regulations and ultimate decision made by the court. After improper conditions are imposed on the defendant’s right to consent, its exercise will inevitably be restricted in regulation and in practice.


A. Time for the Exercise of the Defendant’s Right to Consent Shall Be Pushed Back


Combing the provisions of article 145 of the Civil Procedural Law and article 238 of the Interpretation on Civil Procedural Law, we can learn that the defendant can only exercise his right to consent during the time after the conclusion of the oral debate in court and before the court’s pronouncement of its judgment. During the time after the court’s acceptance of the case and before the conclusion of the oral debate in court, whether the plaintiff’s application for withdrawal is approved is decided by the court without the need for the defendant’s consent. It is thus evident that even though the court, as the system reformer, attempts to change the situation where the court’s discretion is dominant in the civil withdrawal system by adopting the defendant’s right to consent in article 238 in the Interpretation on Civil Procedural Law, such attempt is much more cautious. We should affirm the good will of the court to reform the system. Meanwhile, we should also be aware that to impose restrictions on the exercise of the defendant’s right to consent will definitely disintegrate or limit the proper use of such right and damage the integrity of the civil procedure.


Where the plaintiff applies to withdraw his case after the conclusion of the oral debate in court and before the court’s pronouncement of its judgment, taking into account the considerable tangible and intangible costs paid by the defendant for the case before the court, it is quite sensible to grant the defendant the right to consent in the systematic design. However, can the defendant’s right to consent only be exercised within such limited period of time? The answer is no. In the author’s opinion, on the premise of the provision of article 238 of the Interpretation on Civil Procedure, in terms of the time for defendant’s exercise of his right to consent, the withdrawal in the first instance proceedings should be specified as the withdrawal before the defendant’s answer, which is applied after the case is accepted and to be decided by the court and before the defendant serves an answer, the withdrawal after the defendant’s answer, which is applied after the defendant serves an answer and before the oral debate in court is concluded, and the withdrawal before the court’s judgment, which is applied after the oral debate in court is concluded and before the judgment is pronounced by the court. What needs consideration in legal theory is whether the withdrawal before and after the defendant’s answer should be approved upon the consent of the defendant.


According to the existing systematic planning, the withdrawal before the defendant’s answer is legally effective upon the court’s approval. Although in judicial practice, the court seldom disapproves the plaintiff’s application for withdrawal, from the perspective of system, there is still the risk that the plaintiff is deprived of withdrawal right by the court with functional power. The plaintiff applies to withdraw his case after the case is accepted and to be decided by the court and before the defendant’s answer implies that the plaintiff wishes to retreat from the litigation as soon as possible before the defendant serves an answer in order to avoid the continuous consumption of manpower, materials and other intangible costs. In terms of the court, it should show respect to the plaintiff’s disposition of his private procedural right and should not impose restrictions on the plaintiff’s withdrawal. In terms of the defendant, it is possible that the defendant just receives the copy of the complaint and is not aware about the plaintiff’s main claims, or has not figured out his key points of defence. Since the defendant has spent limited energy on the case, it is more favorable to the protection of the plaintiff’s withdrawal right without the need of the defendant’s consent. What is more, in some cases, the defendant may not receive the copy of the complaint at all and has no idea about the case filed against him, which makes it impossible from the procedural perspective to have the plaintiff’s withdrawal application approved upon the defendant’s consent. Therefore, the withdrawal before the defendant’s answer needs no restriction by the court’s discretion or the defendant’s consent.


According to the existing systematic planning, the defendant’s consent is not an essential requirement for validity of withdrawal after the defendant’s answer. In fact, once the defendant serves an answer or debates in court, it implies that the defendant has consumed considerable manpower, materials, money and time for substantial defence and expects to have the dispute over the private right settled by the court’s judgment in his favor. ‘Especially where the plaintiff withdraws his case before the final judgment is rendered ... the case will be deemed as not have been filed, and the plaintiff has to file a separate case. In order to achieve equality in procedure, it is necessary to show respect to the defendant’s will.’ Thus, it is a natural procedural option to limit the plaintiff’s withdrawal by adopting the defendant’s right to consent to promote the substantive equality between the two litigation subjects. In the countries of the common law system and the civil law system, the time for defendant’s exercise of his right to consent starts since after the defendant has conducted substantial defence such as service of an answer or debate in court. However, in China, the starting time for defendant’s exercise of his right to consent is pushed back to after the conclusion of the debate in court, which makes it impossible to have withdrawal after the defendant’s answer properly connected with the defendant’s right to consent, greatly reduces the extent to which the defendant’s right to consent can be exercised, and weakens the systematic function of the defendant’s right to consent.


To sum up, either the plaintiff’s withdrawal after the defendant’s answer or after the oral debate in court has to be approved upon the defendant’s consent. That article 238 of the Interpretation on Civil Procedural Law pushes back the time for the exercise of the defendant’s right to consent is a narrow-minded approach to disintegrate the defendant’s right to consent.


B. The Defendant’s Right to Consent Is Subject to the Court’s Discretion


Even in terms of withdrawal before the court’s pronouncement of its judgment, the defendant’s right to consent cannot solely make the withdrawal legally effective. In accordance with the provision of article 238(2) of the Interpretation on Civil Procedural Law, if the defendant gives consent to the plaintiff’s application for withdrawal without violation of the legal provisions, the court may approve such application; if the defendant refuses to give consent, the court may disapprove such application. To use the term of ‘may’ with selective guidance implies that the system reformer would rather believe more in the ultimate control of the court’s function than to have the withdrawal application directly approved upon the defendant’s consent. We might as well understand this provision as follows: if the defendant gives consent to the plaintiff’s withdrawal, the court may disapprove such withdrawal whenever necessary; if the defendant objects to the plaintiff’s withdrawal, the court may approval such withdrawal if the court thinks that the plaintiff’s withdrawal is justifiable and legal. The author treats the withdrawal consented by the defendant with approval made by the court’s discretion as two-prong withdrawal mode. In such mode, the newly adopted procedural requirement for defendant’s consent does not truly shake up the leading role of the court in the withdrawal system. It is just like a procedural flood-discharge gate out of the defendant’s control, which is closed or opened at the court’s discretion.


The system where the defendant’s right to consent is attached or subject to the court’s discretion indicates that the court has not abandoned the long pursued court-centered approach, which makes it consider the problem and design the system from the single perspective of the system operator. The main purpose of being unwilling to abandon the ultimate discretion is to secure the absolute control of the court on the withdrawal of cases to raise the withdrawal rate in an overt or covert manner. Motivated by such utilitarian purpose, the court is more likely to restrain or suppress by means of its ultimate discretion the defendant’s exercise of his right to consent. If the defendant gives consent to the plaintiff’s withdrawal, it meets the need of the court for withdrawal rate and consequently makes it easier for the court to accept without exercising its discretion. If the defendant objects to the plaintiff’s withdrawal while the court holds that the plaintiff’s withdrawal satisfies the legal requirements for withdrawal and that to continue to go through the proceedings will depart from the court’s interests and waste the limited judicial resources, the court may approve the plaintiff’s withdrawal application. ‘As long as the individuals have not changed the official standards into their own standards, the state needs to remain the final option for the way of police implementation.’ It is a more possible choice of the court in our country to use its ultimate discretion to change the consequence of the defendant’s choice.


From the perspective of comparative law, it is commonly provided in the modern civil procedural law that the defendant’s consent is an essential requirement for validity of the plaintiff’s withdrawal, excluding the ultimate discretion of the court. Lack of follow-up regulation on the ultimate discretion of the court to make the defendant’s right to consent a substantive right to independently decide on the effectiveness of the plaintiff’s withdrawal can be counter evidence on the irrationality of the two-prong mode of withdrawal of cases adopted in practice in China.


C. Different Conditions Are Imposed on the Defendant’s Right to Consent


The plaintiff’s right to withdraw his case is exercised in the first instance proceedings and can also be extended to the second instance proceedings. However, in terms of the provision of the Interpretation on Civil Procedural Law on the withdrawal in the second instance proceedings, the procedural requirements are stricter than those for the withdrawal in the first instance proceedings. Article 338 (1) of the Interpretation on Civil Procedural Law provides: ‘Where the plaintiff to the first instance proceedings applies for withdrawing the case during second instance proceedings, the competent people’s court may approve the application if the other parties consent to the application and the application is not detrimental to national interests, public interests, and the legitimate rights and interests of others.’ It is thus evident that, besides the defendant’s consent and the court’s discretion, the consideration of public interests and the rights and interests of others is added to the requirements for withdrawal in second instance proceedings. Although public interests and the rights and interests of others may be taken into consideration when the court makes decision on the plaintiff’s withdrawal, the factors influencing the court’s decision are various. Considering the explicit provision in the Interpretation on Civil Procedural Law, it is more reasonable to treat public interests or the rights and interests of others as a separate requirement. Thus, the author refers to the legislation on withdrawal in the second instance proceedings adopted in the Interpretation on Civil Procedural as the three-fold withdrawal mode.


Different from the two-prong withdrawal mode, the three-fold withdrawal mode includes the public interests or the rights and interests of others as the exclusive conditions. The requirements for approval of withdrawal are harsher. The reason for such requirements is that no matter which party commences the second instance proceedings, the final judgment of the first instance court is in an uncertain state and can be the substantial benchmark for the ultimate settlement of the dispute based on the hearing and decision of the second instance court, for which the second instance court will have to spend considerable judicial resources and the other parties (including the plaintiff and the defendant to the first instance proceedings) have to pay more costs. The plaintiff’s withdrawal of the case in the second instance proceedings denies both the final judgment rendered by the first instance court and the judicial resources spent for such judgment. As a result, the efforts of the defendant to the first instance proceedings for participating the case hearing conducted by the courts at two levels are made in vain and the judicial costs paid by him are wasted. What is worse, the plaintiff to the first instance proceedings will probably use the withdrawal system as a legal means to avoid the risk of losing the case in the second instance proceedings. Therefore, it seems fair and sensible that the conditions imposed on the plaintiff’s withdrawal in the second instance proceedings are more restrictive than those imposed on the plaintiff’s withdrawal in the first instance proceedings. Under the judicial circumstances in our country where the national interests and the public interests are highly admired, it is not surprising that it is a requirement for withdrawal of cases in the second instance proceedings to protect the public interests and the rights and interests of others.


To impose additional conditions on the exercise of the defendant’s right to consent can effectively prevent the public interests and the rights and interests of others from being violated. However, it makes a logic error by replacing the principle with exceptions, and further increases the difficulty in the plaintiff’s withdrawal and decreases the independence of the defendant’s right to consent which is not very independent. In the litigious conception with regulation as the main purpose, it is the foundation in the construction of a modern civil procedural system to safeguard the private rights of individuals through the settlement of civil disputes. In civil litigation, most of the disputes are the trivial disputes between or among individuals, which do not involve the public interests or the rights and interests of others. Although, in recent years, there are more and more public interest lawsuits involving the rights and interests of the non-specific majority, such lawsuits take up a very few number in the civil litigation. If a very few cases involving the public interests or the rights and interests are generalized as the common legal requirement, the logical error of replacing the principle with exceptions or taking the part for the whole, will certainly be inevitable. In addition, even if the plaintiff’s withdrawal violates the public interests or the rights and interests of others, it can be redressed through claims for damages after such rights and interests are violated. It is not necessary to prevent in advance the plaintiff from withdrawing his case, just like throwing away the apple because of the core.


Thus, it is commonly recognized in the both the common law system and the civil law system that the plaintiff can withdraw his case at any time after the case is accepted and to be decided by the court and before the court’s pronouncement of its judgment without separate provisions on the plaintiff’s withdrawal in the second instance proceedings. This implies that the plaintiff’s withdrawal in the second instance proceedings have to meet the same requirement for the plaintiff’s withdrawal in the first instance proceeding, which is the defendant’s consent without considering the public interests, the rights and interests of others, and the court’s approval. However, mechanism of regulations on the procedure after the plaintiff’s withdrawal in the second instance proceedings is established in order to properly safeguard the interests of the plaintiff, the defendant, and the court respectively. There are two specific ways of regulation. One is the rule of compensation for the expenses incurred by the plaintiff’s withdrawal in the second instance proceedings. For example, the Civil Procedural Law of Germany provides that the plaintiff can file a separate lawsuit where he withdraws his case after the final judgment is rendered while the defendant can argue that ‘the plaintiff fails to compensate for the expenses incurred by his withdrawal’. Where the plaintiff fails to perform his obligation of compensation, his claims will be dismissed for the sake of illegality of the cause of action. The other is the rule of preclusion of separate cases. For example, the civil procedural law of some countries including Japan and Korea provides that where the plaintiff withdraws his case after the final judgment is rendered, he shall be precluded from filing a separate lawsuit for the same cause of action. 


III. REASONABLE CORRECTION OF THE DEFENDANT’S RIGHT TO CONSENT AND THE PROPER TRANSFORMATION OF THE COURT’S POWER


Deviation of the regulation and restrictions imposed on the exercise of the defendant’s right to consent indicate that the court, as the system reformer, is not in the right direction in terms of guiding concepts and procedural planning. In correction and reconstruction of the defendant’s right to consent, only when the litigation theories of the court are changed and the rational systematic planning is made can the defendant’s right to consent be completely reformed and a strong litigious relationship among the plaintiff, the defendant, and the court be established. In the author’s opinion, in terms of the litigious concept of withdrawal system, the expression of the interests of the parties as the system user should be properly strengthened while the space for the role played by the court as the system operator should be properly reduced in order to properly promote the coexistence and balance in the eyes of the system user and the system operator. To develop such litigious concept into specific systematic planning, what is in urgent need is to extend the time period for the exercise of the defendant’s right to consent, to make the defendant’s right to consent independent in deciding the effectiveness of the plaintiff’s withdrawal, to abandon the court’s ultimate discretion, and to significantly change the substantive control of the court into its procedural control.


A. To Extend the Time Period for the Exercise of the Defendant’s Right to Consent


The existing provision limits the time for the exercise of the defendant’s right to consent to the short time period after the oral debate in court and before the court’s pronouncement of its judgment, which greatly weakened the function of the defendant’s right to consent in restraining the plaintiff from abusing his withdrawal right so as to promote the substantial equality between the plaintiff and the defendant. In judicial practice, with more and more importance being attached to the defendant’s right to consent which has been adopted in litigation, it is an inevitable tendency to extend the time period for the exercise of such right. Where the defendant fails to serve an answer to the plaintiff’s complaint and participates in the litigation by joining the oral debate, the time for the defendant to exercise his right to consent runs since he joins the oral debate in court. The reason why the time does not run simply since the defendant serves an answer, which is different from the provision in many other countries, is that quite a few defendants in our country do not serve an answer at all. As a result, it is difficult to tell whether they have made necessary preparations for the case against them. To simply define the starting time as the time when the defendant serves an answer may improperly make the defendant able to exercise his right to consent at an earlier stage, which is not proper because while safeguarding the defendant’s procedural rights and interests, it will probably prevent the plaintiff from exercising his withdrawal right even though the plaintiff can make independent choice to withdraw his case at any time before the defendant serves an answer or participates the oral debate in court without the defendant’s consent or the court’s approval.


Where the defendant has made substantial defence, until before the judgment is conclusive, the plaintiff’s withdrawal has to be consented to by the defendant. That the judgment is conclusive refers to a state in which neither the plaintiff nor the defendant can make arguments through normal proceedings for the dispute submitted to the court for settlement. If the judgment is conclusive, the court has been certain about the substantive standards for the settlement of the dispute. Subsequently, the plaintiff cannot apply to withdraw the case which has been settled. As to the time when the judgment is certain, it should be identified case by case. Where the judgment of the first instance court is the final judgment and neither of the parties files an appeal within the prescribed time limit, the judgment is certain when such prescribed time limit for appeal expires. Where either party appeals against the judgment of the first instance court, when the second instance court announces its final judgment, such judgment is conclusive. Of course, in terms of the judgment of the first instance court against which appeal cannot be filed, once it is announced by the court, it is conclusive. 


As long as the judgment is not conclusive, whether it is in the first instance proceedings or it is in the second instance proceedings, the plaintiff can withdrawal his case. Just as how Othmar Jauering puts it: ‘A case can be withdrawn at any time during the proceedings before the judgment is conclusive and makes the case a res judicata, at the time after the end of the lower court proceedings and before the start of the higher court proceedings, or during the higher court proceedings.’ This reflects the fact that withdrawal in the first instance proceedings and that in the second instance proceedings apply the same requirement: the plaintiff’s withdrawal has to be consented to by the defendant. There is no need for more rigid conditions on the withdrawal in the second instance proceedings. As a result, whether it is the court’s ultimate discretion, the public interests, or the rights and interests of others, it should be abandoned. However, it is necessary to learn from Japan and Korea to adopt the rule of preclusion of separate action after the final judgment is rendered so that the court’s efforts made for the dispute settlement will not be meaningless, the defendant’s rights and interests will be properly protected and the plaintiff will be prevented from withdrawing his case to avoid judgment unfavorable to him.


B. To Make the Defendant’s Right to Consent Independent and Substantial


It cannot be denied that the biggest obstacle in the development of the civil withdrawal system in our country is the court’s ultimate discretion making the defendant’s right to consent lack of independence in deciding on the effectiveness of the plaintiff’s withdrawal. Thus, it is right to say that the Interpretation on Civil Procedural Law is only a small step in the reform of the civil withdrawal system. The key to the fundamental change and the great-leap-forward development of the civil withdrawal system is to abandon the court’s ultimate discretion, have the defendant independently exercise his right to consent in deciding the effectiveness of the plaintiff’s withdrawal, and promote the independence and substantiality of the defendant’s right to consent. In terms of the systematic planning, the plaintiff’s withdrawal at any time after the defendant has made substantial defence and before the judgment is conclusive has to be consented by the defendant. Where the defendant fails to give consent, the court hearing the case should continue to go through the proceedings and render its final judgment on the case. In this process, the court should no longer enjoy the ultimate discretion in approving or disapproving the plaintiff’s withdrawal.


During the process in which the court’s power and the defendant’s right are alternately strong and weak, actual changes take place to the defendant’s right to consent and become independent and substantial in deciding the effectiveness of the plaintiff’s withdrawal. To properly use the defendant’s right to consent is beneficial to the improvement of the defendant’s procedural subject status, the safeguard of the defendant’s procedural and substantive rights and interests, the restriction on the plaintiff’s abuse of his withdrawal right, and the construction of a reasonable relationship between the plaintiff and the defendant. It can be argued that it symbolizes the gradual rationalization, modernization and internationalization of the civil withdrawal system to have the plaintiff’s withdrawal consented by the defendant and to promote the independence and substantiality of the defendant’s right to consent. However, the defendant has to be restrained by his responsibility and take the legal risks brought about by exercising his right to consent or to object. While exercising his right to consent, the defendant has to take the risk that the plaintiff may file a separate action; while exercising his right to object, the defendant has to take the risk that the judgment may be unfavorable to him.


Whether it is the defendant’s right to consent or to object, it should be the manifestation of his true will, which has to be exercised by the defendant with his own knowledge and understanding of the content and the effectiveness of the right as well as the possible adverse consequences of the exercise of the right, and without the improper interference of other factors. Only when this is achieved can the role of the defendant’s right to consent prescribed by the law be brought into its full play. What is worthy of notice is that where the plaintiff’s withdrawal is an act to be effective without the court’s decision, the withdrawal stands when the plaintiff expresses to the court his willingness to withdraw his case. It does not need to be consented to by the defendant. The defendant’s consent is the requirement for the effectiveness of the plaintiff’s withdrawal other than the requirement for its standing. Therefore, the defendant’s consent is not opinion expression but opinion notification. Under the circumstance in our country where the court has strong preference to the withdrawal rate, more attention must be paid to the undue influence of the court’s functional power on the defendant’s true will and to the purification of the defendant’s right to consent. In any case, the court has no power to force the defendant to exercise his right to consent, nor the plaintiff can force the defendant by means of fraud or duress to give consent to his withdrawal to lead to a result in his favor.


The defendant may express to the court, in written or oral form, his willingness to consent or to object. The written form of expression can be the letter of consent or the letter of objection, which can be a separate document or attached to other documents. The oral consent or objection is made directly by the defendant to the court during the oral debate in court. Where the defendant gives oral consent or objection to the plaintiff’s withdrawal, the court should definitely keep it in the record of the court hearing. Silence is regarded as consent in some countries. For example, there is such provision in Korea and Japan that where the defendant fails to make objection within two weeks since he receives the plaintiff’s letter of withdrawal, it will be deemed that the defendant has given consent to the plaintiff’s withdrawal. In the author’s opinion, such form of consent should not be adopted in our country. Because some defendants have none or a little knowledge about the law and a compulsory lawyer representation system is not legally established, it is difficult for the defendant to make a sensible decision in two weeks on whether to exercise his right to consent and more difficult to predict what legal risks will be brought about by exercising his right to consent. To regard silence as consent is nothing but improper legal sanction on the defendant.

 

C. To Safeguard the Court’s Proper Use of Its Procedural Control Power


To abandon the court’s ultimate discretion does not necessarily mean that the court will not perform its functions in the civil withdrawal system. On the contrary, an inactive court will not help bring the role of the defendant’s right to consent into its play and will hinder the benign development of the civil withdrawal system. The court’s power should be exercised at the right time in a right manner, which demands for the promotion of the modernization of the court’s power in the civil withdrawal system and for the change of the court’s substantive control into its procedural control. Procedural control implies that the court should perform its judicial functions properly in terms of procedural issues to assure that the proceedings go smoothly. In the civil withdrawal system, the procedural control can be conducted in two ways: one is the formality examination; the other is the court’s clarification.


It is critical to the reform of the civil withdrawal system to change the court’s power of substantive examination into the court’s power of formality examination. Even though the court no longer has the ultimate discretion on approval or disapproval of the withdrawal of cases, it still has power to examine the formality of the plaintiff’s withdrawal and that of the defendant’s consent. The court should conduct careful and detailed examination on the requirements for the standing and effectiveness of the plaintiff’s withdrawal, including whether the plaintiff applies for withdrawal before the judgment is conclusive, whether the plaintiff has the standing to independently apply for withdrawal, whether the defendant gives consent to the plaintiff’s withdrawal, whether the defendant’s consent is given out of his true will, whether the plaintiff’s withdrawal is effective, and so on. If the plaintiff’s withdrawal is valid and consented to by the defendant, it should be approved and the court proceedings should be ended. If the plaintiff’s withdrawal is illegal or invalid, or not consented to by the defendant, the plaintiff’s application for withdrawal of the case should be disapproved, the court proceedings should continue, and final judgment should be rendered. It must be watchful that the court conducts only procedural formality examination, which should not be deviated or enlarged to be substantive examination.


In order to push forward the process of modernization of the civil withdrawal system, it is necessary to grant the court clarification power. The necessary information provided by the court will make it easier for the plaintiff to properly exercise his withdrawal right and for the defendant to properly exercise his right to consent or to object so that their procedural rights and interests will not be violated. Especially, under the circumstances where there is no compulsory lawyer representation system in our country and the litigious capacity of the parties is weak with little legal knowledge, it is of particular significance to make proper use of the court’s clarification power. In the civil withdrawal system, the court can make clarification to either the plaintiff or the defendant. However, ‘where the court is guiding the court proceedings, it cannot be inactive or arbitrary ... The parties must be under the court’s relevant proceeding guidance and be positively cooperative.’ Specifically, where the plaintiff applies for withdrawal, the court should inform him of the proceedings for withdrawal and its legal consequences and have the plaintiff make his own decision. Especially where the plaintiff applies to withdraw in the second instance proceedings, the court must inform the plaintiff of the legal consequence that he cannot file a separate action after his withdrawal and have him make his own decision on whether to withdraw or not. Meanwhile, the court should inform the defendant that his consent to the plaintiff’s withdraw may make him be faced with a separate action filed by the plaintiff against him and that his objection to the plaintiff’s withdrawal may make him be faced with a final judgment unfavorable to him and pay more judicial expenses, and have the defendant make his own decision whether to consent or to object to the plaintiff’s withdrawal. In no cases should the court take the advantage of its clarification power to urge or force the defendant to give consent to or object to the plaintiff’s withdrawal.


IV. CONCLUSION


Institutionalization of the defendant’s right to consent has changed the civil withdrawal system to a certain extent, which shows the determination and courage of the court as the system reformer to explore a complete new way to promote the modernization of the civil procedural system. However, some parts of the systematic planning of the defendant’s right to consent fail to serve the purpose. The defects that the time period for the exercise of the defendant’s right to consent is too limited and that the defendant’s right to consent is subject to the court’s ultimate discretion and cannot independently decide on the effectiveness of the plaintiff’s withdrawal severely limit the proper use and the role of the defendant’s right to consent. In the correction and reconstruction of the defendant’s right to consent, we should adhere to the litigious concept with organic integration of the system user with the system operator. In terms of the system user, the independence and substantiality of the defendant’s right to consent have to be promoted urgently and the time period for the exercise of the defendant’s right has to be properly extended. In terms of the system operator, the court’s ultimate discretion should be abandoned to gradually change the court’s power from the substantive control into the procedural control and to safeguard the proper use of the court’s power with its formality examination power and clarification power. Such two aspects in reform of the civil withdrawal system are highly consistent with the tendency of the common law system and the civil law system in constructing the mechanism of parties’ agreement on settlement of procedural issues and in strengthening the court’s power of procedural control, which is also the basic idea in promoting the modernization and internationalization of the civil procedural system in our country in the future.


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