Abstract：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 fixes the consent between the parties, and truly embodies the spirit of the dispositive principle of the law of civil procedure. The other one is to reference to the litigation mediation, i.e. applying for mediation based on the litigation settlement agreement. Against the background of the dominance of the mediation system in the Chinese law, the road of litigation mediation is a reasonable and cost effective choice.
张艳. 民事诉讼中的因和解而撤诉：理论反思与制度重构[J]. 浙江大学学报(人文社会科学版), 2024, 54(12): 93-103.
Zhang Yan. Withdrawal of Lawsuit Due to Settlement in Civil Litigation: Theoretical Reflection and Institutional Reconstruction. JOURNAL OF ZHEJIANG UNIVERSITY, 2024, 54(12): 93-103.
2024, Vol. 54 
