民事诉讼中的因和解而撤诉:理论反思与制度重构  

Withdrawal of Lawsuit Due to Settlement in Civil Litigation: Theoretical Reflection and Institutional Reconstruction

作　　者：张艳 Zhang Yan(School of Law,Hangzhou City University,Hangzhou310015,China)

机构地区：[1]浙大城市学院法学院,浙江杭州310015

出　　处：《浙江大学学报(人文社会科学版)》2024年第12期93-103,共11页Journal of Zhejiang University:Humanities and Social Sciences

摘　　要：根据《民事诉讼法》及相关司法解释规定和实践,当事人达成诉讼和解协议后,既可向法院申请制作调解书,也可向法院申请撤诉。“基于诉讼和解而撤诉”似乎既符合民事诉讼法的处分原则,又贯彻了鼓励撤诉的司法政策,但其实存在四个困境:一是客观造成对诉讼调解与诉讼和解不必要的差别待遇;二是增加当事人实施“假和解、真欺诈”的潜在风险;三是高估撤诉结案方式的优势而忽视其弊端或风险;四是导致若干程序制度之间出现严重冲突。因此,建议未来《民事诉讼法》修改时否定基于诉讼和解而撤诉的规则,作为替代方案有两个选择:一是借鉴比较法经验,将诉讼和解协议记入笔录并赋予强制执行效力;二是参照诉讼调解,基于诉讼和解协议申请制作调解书。According to China’s Civil Procedure Law and relevant judicial interpretations and their implementation,when the parties reach a settlement,they can apply to the court for either mediation or withdrawal.Withdrawal due to Settlement seems like a good rule,which is consistent with the principle of disposition and the judicial policy of encouraging the withdrawal.But in fact,there are theoretical and practical dilemma in this rule.There are mainly four specific dilemmas of The Rule of Withdrawal Due to Settlement.Firstly,it objectively caused the unnecessary difference between the litigation mediation and litigation settlement.Litigation mediation can only apply be used the court for the mediation agreement,but while the litigation settlement can apply be used for the withdrawal.Secondly,it increases the potential risk of fraud-based fake settlement by the parties.This rule artificially takes the opportunity for opportunism,which is contrary to the goal of system for preventing and curtailing opportunism.Thirdly,it overestimates the advantages but ignores its the risks of the withdrawal.In fact,the withdrawal does not mean that the dispute has been resolved,but the parties still have the chance to submit the dispute to litigation again.Fourthly,it leads to a serious conflict between among a number of procedural systems.Due to the lack of confirmation of the court,the settlement can not fight against the effective judgment already existed before.Re-examining and evaluating The Rule of Withdrawal Due to Settlement has significance for the scientification and systematization of the civil procedure law.It is suggested that The Rule of Withdrawal Due to Settlement be deleted in the future revision of the civil procedure law.There are two alternatives to choose from.One is to learn from the experience of comparative law.The litigation settlement agreement will be recorded in the transcript of trail and given the effect of enforcement so that the parties have no chance to renege or fraud.The strong effect of enforcement

关 键 词：民事撤诉 诉讼和解 诉讼调解 处分原则 鼓励撤诉 

分 类 号：D92[政治法律—法学]