중국 민사소송법상 소취하의 기간과 효력발생 요건에 관한 소고

The existing China Civil Procedure Law provides that an action can be withdrawn before announcement of judgment and the court can determine allow it or not. These regulations cause many problems because it put restrictions on disposition of the parties on the withdrawal. After referring to the related regulations of Korea Japanese, Germany, and Taiwan,author has the opinion that plaintiff in China also should be able to withdraw an action before the judgment become effective. In other words,the plaintiff can withdraw an action even after the announcement of judgment; and if the appeal is filed, the plaintiff could also withdraw the action before the judgment in the appeal became effective. And, the requirement for becoming effective of withdrawing an action should be corrected as： before the defendant submits the pleading on substantial part of the case or has the debate on substantial part of the case in the court, the plaintiff can withdraw the action without the agreement of defendant; and after that, the plaintiff can withdraw the action with the agreement of defendant because if the dependent prepares on the substantial part of the case, he would have the interest of winning the case. In the same way, it is necessary to get the agreement from the plaintiff for the defendant to withdraw a counteraction, but if the action is withdrawn the defendant could withdraw the counteraction without agreement from the plaintiff. In the appeal, verbot der reformatio in peius(the principle of forbidding change of interests in appeal) should be introduced and applied. Also, in order to prevent abusing of the appeal,we should introduce the anschlussberufung(the cross-appeal). And after the introduction of anschlussberufung(the cross-appeal) it is not necessary to get the agreement from the respondent.