From Discretion to Compulsion:A Reflection on the System of Treating a Plaintiffs Absence as Withdrawal of the Lawsuit
The system of treating a plaintiff's absence as withdrawal of the lawsuit is an original institution in China's procedural law,reflecting the deep mechanism of mutual shaping between the court's judicial power and the parties'disposing right.From the current operational status,the legislative text's'may'treat absence as withdrawal has become'shall'in judicial practice,transforming procedural discretionary norms into mandatory norms.The subjective motivation for the expansion of this system lies in the fact that treating absence as withdrawal can achieve a rapid conclusion of the litigation process,thereby satisfying the procedural expectations of various parties to different extents.The lack of restrictive clauses in the legislation provides objective conditions for this expansion,and China's policy incentives for resolving cases through withdrawal serve as the practical driving force for the expansion of this system.Constrained by the limitations of the judicial operating environment,the true defect of this system does not lie in violating the principle of equal litigation rights,but in infringing upon the disposing right of the parties,which further leads to overall inefficiency of the system.Only by setting the prerequisites of the plaintiff's two absences and the defendant's consent to withdrawal as the conditions for treating the case as withdrawal can we institutionally constrain the court's judicial power to reduce undue interference from external factors,thereby truly protecting the disposing right of the parties and achieving the policy goal of litigation source governance.
Plaintiffs AbsenceTreat as Withdrawal of the LawsuitDisposing RightDefault Judgment
万方数据
维普
