A non-prosecution contract refers to a contract in which the parties agree not to file a civil lawsuit after the occurrence of a civil dispute before filing a lawsuit, and the civil dispute can be resolved through litigation. The following is the analysis of civil non-prosecution contract I collected for you, hoping to help you.

Judging from the legislation and judicial practice of various countries, the non-prosecution contract is one of the various forms of civil litigation contract, and it is also a new litigation contract in China in recent years. Its validity is controversial, and there is no explicit provision in our laws, regulations or judicial interpretation. In judicial practice, the effectiveness of this behavior of giving up litigation rights through litigation contracts is generally denied according to the traditional theory of litigation law. This paper holds that we should comply with the trend of authoritarianism to partisanship, and issue corresponding legal norms from the perspective of respecting the principle of the parties' right to dispose, and clearly give the non-prosecution contract between the two parties corresponding legal effect.

Keywords: non-prosecution litigation contract procedure law

When a law was first established, it had its environmental needs, and only this environment made it reasonable. But in fact, the environment in which this law came into being has changed, and this law is still valid. Since China's current Civil Procedure Law was promulgated in April 199 1, it is obviously difficult to adapt to the complicated and changeable social reality. Although the National People's Congress partially revised the retrial and execution procedures in the current civil procedure law in 2007, there are still many drawbacks in the whole system design. Many scholars still call for a comprehensive revision of the civil procedure law, especially some scholars call for implanting the concept of contract. The author also thinks that this is the development trend of civil litigation system, and the academic circle has a certain foundation for the understanding of civil litigation contract. However, there is a lack of comprehensive and in-depth analysis of the connotation, nature, effectiveness, relief and theoretical basis of civil litigation contract, especially the understanding of the new litigation contract of apology is not in place. Therefore, the author intends to express his views on the effectiveness of the non-prosecution contract in China in order to benefit the development of the civil litigation system.

First, the definition of non-prosecution contract

Non-prosecution contract is a kind of litigation contract. Litigation contract mainly refers to the agreement reached by both parties on the civil litigation-related behavior of a dispute now or in the future outside the litigation or in the litigation, aiming at directly or indirectly affecting the litigation procedure. A non-prosecution contract refers to a contract in which the parties agree not to file a civil lawsuit after a civil dispute occurs, but to resolve the civil dispute through litigation. It is the embodiment of the spirit of autonomy in private law, the embodiment of party autonomy in the field of civil litigation, and the need to fully respect the party's right to dispose. Chinese scholars have been calling for the system of litigation contract, including non-prosecution contract, to be implanted into the civil procedure law as soon as possible, but there is no legal provision or judicial interpretation of any relevant content and effect at present. The understanding of the contract of apology in Chinese academic circles is not deep enough. I think, to understand this system deeply, we need to pay attention to its following characteristics:

First, relative independence. A non-prosecution contract is called a contract, but it is usually used as a dispute settlement clause in a settlement agreement in judicial practice. Because the non-prosecution contract is a procedural agreement, it is essentially different from the agreement on the disposition of substantive rights and interests between the parties, and it is generally used as a dispute settlement clause to give it independence in effect. Therefore, this clause is not implicated, because other clauses and even the whole agreement are invalid. If the non-prosecution contract is deemed invalid, it needs to be specifically identified by the judicial organ.

Second, it can be formed before litigation or during litigation. Non-prosecution contract exists as a controversial clause in the settlement agreement, and its formation time is generally the formation time of the settlement agreement. The current reconciliation system in China usually includes reconciliation outside litigation and self-reconciliation in litigation. The former refers to the behavior of the two parties to a dispute to reach a settlement agreement through consultation on their own according to the voluntary principle in civil law. The latter is an agreement in the sense of procedural law in court proceedings. In order to solve the civil disputes that have already occurred, the parties make compromises or concessions on their disputes. The non-prosecution contract formed by the parties' settlement outside the lawsuit is generally an agreement on relevant substantive issues before the lawsuit, stipulating that the dispute will not be prosecuted. In litigation, it is the parties who reach a settlement agreement in litigation and stipulate that the plaintiff will withdraw the lawsuit. It should be noted that there is no possibility and practical significance to reach a non-prosecution contract after the court's judgment, such as during the execution.

Third, the nature is different from the substantive contract. Although it is also an agreement reached between the parties, it is essentially an agreement on the way to resolve disputes, which does not involve the substantive interests of the parties and is only a supplementary clause. In essence, the process of civil litigation in continental law system is a process in which the court finds the facts, applies the law and makes substantive judgments on the case with civil substantive law. Therefore, the non-prosecution contract itself cannot be the object of litigation, nor can it be the object of trial and judgment by the court. According to the current law of our country, it can only be used as the reason for the defendant to raise jurisdiction objection, and whether the agreement of immediate non-prosecution has corresponding legal effect still needs the court's discretion according to law.

Fourth, there is no final effect. In the field of civil substantive law, in principle? Freedom is not prohibited by law? The law adopts a more tolerant attitude and respects the disposition right of the parties to the maximum extent. The non-prosecution contract essentially involves the disposal of litigation rights and whether the court should accept it. It essentially involves the scope of public power, so its effectiveness is controversial, and there is no relevant provision in China's current laws. Therefore, the non-prosecution contract under the current conditions in our country is only the reality of the parties in judicial practice, and whether they will sue again depends on their own integrity and interests. If the parties exercise the right of appeal, the court may not recognize the agreement.

Second, the validity of the non-prosecution contract dispute

Although with the in-depth study of the theory of civil procedure, some scholars began to call for the idea of implanting litigation contract into the civil procedure law, because there is no relevant provision on this theory in China's civil procedure law, scholars have great disputes about the effectiveness of non-litigation contract, mainly with two opposing views: effective and invalid. The author elaborates as follows:

(1) A non-prosecution contract is invalid.

As a kind of litigation contract, non-prosecution contract should be invalid, which is mainly demonstrated from the perspective of procedural stability and non-arbitrary punishment of public law. Representative scholars include Professor Shao Ming and Professor Shen Guanling.

1. Demonstration from the Perspective of Program Stability

The stability of procedure means that civil litigation should be conducted in time sequence and spatial structure according to law and make a final judgment, so that the litigation has an orderly and stable state. Program stability includes the stability of program specification and the stability of program operation. The stability of program specification means that the program specification should be as definite, concrete and clear as possible, and there should not be too many uncertain, abstract and vague provisions. Professor Shao Ming believes that according to the principle of stability in civil proceedings, both the judge and the parties are prohibited? Arbitrary litigation? That is to say, judges and parties are prohibited from arbitrarily changing litigation procedures, and the corresponding litigation actions must be implemented in accordance with legal procedures and behavioral elements. The non-prosecution contract is a change made by the parties to the legal civil procedure, which obviously violates the stability requirements of the procedure. Therefore, from the point of view that China still needs to establish the awareness of due process protection, the court and the parties should be required to strictly abide by the stable litigation procedure and deny the validity of the non-prosecution contract.

2. Argumentation from the perspective of non-arbitrary punishment of public law.

The traditional view is that the typical mandatory norms of civil procedure law, in the case that the civil procedure law does not explicitly authorize the parties to punish, the parties conclude a non-prosecution contract without authorization, depriving the parties of their right to appeal, which violates the mandatory provisions of civil procedure law, so the non-prosecution contract cannot produce corresponding legal effect. This view also holds that the litigation law mainly stipulates the behavior of the parties to the court, which requires that such behavior must meet certain conditions and requirements. If the contract between the parties cannot meet this requirement, it will not be effective in the litigation procedure.

(B) the theory of the effectiveness of non-prosecution contract

The representative scholar of this view is Professor Chen Guiming, who believes that although the civil procedure law does not clearly stipulate the validity of the non-prosecution contract, it certainly cannot deny its legitimacy. Whether this kind of behavior is allowed by law should be considered from the purpose of civil litigation, which is to solve disputes and completely solve disputes between the parties. Therefore, when the parties reach a non-prosecution contract, it is unnecessary to continue the lawsuit, which ultimately conforms to the purpose of civil litigation, so the non-prosecution contract should not be prohibited by law.

Three, the effectiveness of the non-prosecution contract should be confirmed by legislation.

The legal effect of the non-prosecution contract lies in the limitation of the right of action, which includes two aspects. On the one hand, what is the effect when the obligee of the right to appeal abides by the agreement and does not exercise the right to appeal; On the other hand, when the obligee insists on bringing a lawsuit to the court when the dispute has not been completely resolved, and the other party takes the non-prosecution contract as the reason of jurisdiction objection, is the non-prosecution contract binding on the parties and the court? The author thinks that the non-prosecution contract has actual legal effect when the parties have no actual right to appeal, and there is no need to deny this actual effect from the legal level. After the parties resort to the court, from the development trend of the civil litigation system, it should be recognized as the legal cause of jurisdiction objection. The author expounds from these two aspects respectively.

(a) the legal effect of not suing the contract when the right of action is not exercised.

The procedural matters of the parties' consensual disposition can be divided into two categories: one is the provisions that explicitly give the parties the right to dispose, and the other is the disposition norms of the parties within the scope of non-procedural authority, which can be divided into arbitrary norms and mandatory norms. According to the provisions of the current civil procedure law, prosecution and non-prosecution belong to the disciplinary authority explicitly given to the parties by the procedure law. ? Litigation is different from private law and adopts expressionism in principle, that is, the effectiveness of litigation or legal effectiveness is based on expression, not on? True meaning? In order to take effect? As long as the parties are unwilling to bring a lawsuit to the people's court according to law, it will not have the effect of restricting the parties' right to appeal. Even from the perspective of strict public law, this non-prosecution contract has validity problems, but because the parties voluntarily accept it, it has already produced actual legal effect, which is not denied from the legal level. Therefore, the author believes that the non-prosecution contract should of course have legal effect if the obligee does not exercise the right to appeal.

(two) after the exercise of the right of action, the effect of not suing the contract.

? Let people act according to their own wishes to maximize the environment and limit their freedom. This is a fair law, and this is a truly great good deed for mankind. ? It is an inevitable trend to implant the concept of contract into China's civil procedure law. On the one hand, this is the need of the transformation of China's civil litigation system. China's current civil procedure law was formulated by 199 1, which reflected the conceptual needs of the planned economy at that time and was full of authoritarianism. With the rapid development of China's commodity economy, adversary system has become an important concept of civil litigation system in line with contemporary social and economic development. This requires not only recognizing the substantive disposition right of the parties, but also expanding the procedural disposition right of the parties; On the other hand, with the social transformation of our country, various contradictions coexist, and the construction of diversified dispute resolution mechanism has become an urgent need of the times, and the reconciliation system is an important part of diversified dispute resolution mechanism. Giving the non-prosecution contract corresponding legal effect is the key to play the role of reconciliation system in solving disputes and stopping disputes. In addition, giving the non-prosecution contract the corresponding legal effect will not cause injustice, because the justice of the parties' agreement not to prosecute lies in their complete willingness. This choice is the overall consideration made by the parties according to their own intentions and interests, and there is no injustice to themselves.

Therefore, the author believes that the parties should recognize the legitimacy of a certain litigation behavior, which mainly refers to excluding or restricting litigation, that is, not suing the contract, as long as the behavior has the possibility of practice and does not violate the mandatory provisions of the law and the public order and good customs of society. Specifically, its effect should be: according to the design purpose of the non-prosecution contract to exclude the right of action, when one party goes to court in the case that the dispute has not been effectively resolved, the other party should be able to take this as the reason for the objection to jurisdiction. If the court does not violate the principles of voluntariness and legality after examination, it shall recognize the validity of the non-prosecution agreement and refuse to accept it, and the substantive dispute shall be handled according to the original settlement agreement.

References:

[1] Adam? Smith. Guo Dali, translated by Wang Yanan. The wealth of the country. The Commercial Press 1987.

[2] Zhang Jiajun. Research on civil litigation contract. Law press. 20 10 edition.

[3] Item. On Non-prosecution Contract/Sixty Years Monograph of China Civil Procedure Law. Xiamen University Press, 2009.

[4] Yang Runshi. Understanding and application of judicial interpretation of civil mediation in the Supreme People's Court. People's Court Press. 2004.

[5] Tan Bin. Research on foreign civil litigation legal system. Law press. 2003 edition.

[6] Li Long. Theoretical research on the object of civil litigation. Law press. 2003 edition.

[7] Chen Guiming. Procedural ideas and rules. China Legal Publishing House. 2000 edition.

[8][ America ]M? j？ Adler. Xi Tsinghua, translated by Jin Xue. Six concepts. United publishing company. 1998+0998.

[9] Shao Ming. Realize the truth in due process. Law press. 2009.

[10] Shen Guanling. Protection of litigation rights and handling of disputes outside the judgment. Peking University Publishing House, 2008.

;