An Analysis of the Rule Prohibiting Plaintiff's Re-litigation Following Withdrawal in Second Instance Civil Cases
The approach to a plaintiff's re-litigation following the withdrawal of a lawsuit in the second instance varies within the civil law system,with Germany and Japan adopting distinct methodologies,namely,reimbursement of litigation costs and prohibition of re-litigation.The Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law introduces a prohibition of re-litigation rule not identical to Japan's approach.This rule exhibits three critical flaws:it unduly restricts the plaintiff's right to initiate lawsuits,draws an unreasonable parallel with repeated litigation,and employs an inadequate set of disposition measures.Based on the principle of proportionality,it is not appropriate for China to continue with the prohibition of re-litigation mode.To reform the regulation concerning a plaintiff's re-litigation post-withdrawal in the second instance,this paper proposes a shift from the prohibition of re-litigation mode to the reimbursement of litigation costs mode,and in the process of localizing the litigation cost reimbursement model,it should complete the standard construction in aspects such as the scope and pathway of reimbursement.
NETL
NSTL
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