撤诉是当事人在民事诉讼中行使处分权的一种诉讼行为，是私法自治精神在诉讼程序的延伸，撤诉制度是民事诉讼中一项十分重要的诉讼制度。在我国，由于民事撤诉制度起步较晚，存在许多的缺陷与不足，尤其是民事二审程序撤回起诉制度，直到2015年司法解释的出台才开始明确规范该制度。明确原告在二审程序的撤回起诉权不仅完善了我国的撤诉制度体系，还为解决司法实践提供了法律依据。但是在肯定立法进步的同时也应注意现有规范仍存在许多问题，如法院职权过大，使得被告同意权制度发挥不到应有的制约作用；法律用语不规范；禁止原告以同一纠纷再诉不合理等问题，因此对民事二审程序撤回起诉制度的研究需更进一步，为该制度的立法完善提供可行建议。

第一部分，概述我国民事二审撤回起诉制度。首先，从民事二审撤回起诉的概念入手，引出学界对民事二审程序当事人能否撤回起诉问题的争议。接下，归纳学界各种观点后得出，基于处分原则、当事人程序主体地位和一审与二审程序的制度平衡，应当允许原告在二审程序撤回起诉。之后，阐述我国的民事二审撤回起诉制度的构成要件和法律效果。最后，归纳梳理该制度的制度沿革与实践现状，指出目前存在诉讼费用的分配标准不明、判决逻辑冲突的问题。

第二部分，关注域外的撤诉制度，作比较法研究。由于我国与大陆法系国家的民事诉讼体制存在渊源关系，并且我国民事诉讼法现行的法律术语、理论规范与大陆法系更为亲近，因此选择大陆法系代表国家德国与日本作比较法研究。德国与日本构建的撤诉制度更为完善，包括撤诉范围、撤诉期限、构成要件、法律效果。

第三部分，重点分析我国民事二审撤回起诉制度的现存问题，归纳如下：其一，原告在民事二审程序撤回起诉后，绝对禁止原告以同一纠纷再诉不合理。其二，法院干预职权过大，法院具有否决原告在二审程序撤诉权的权力，不仅会损害到原告撤诉权的正常行使，也会使得被告的同意权制度发挥不到应有制约作用。其三，诉讼费用负担规则不明确，二审撤回起诉制度在司法实践中的诉讼费用负担呈五花八门的乱象。

第四部分，针对司法实践中的现存问题，探索我国民事二审撤回起诉制度的完善路径。首先，区别化处理当事人二审撤回起诉后就同一纠纷再诉的问题，即以禁止再诉为原则，但允许产生新利益或新事实的纠纷和持续变化的人身关系的当事人再起提起诉讼。其次，平衡诉权与审判权，具体做法是强化被告诉权，弱化法院职权。二审撤回起诉案件坚持以被告为中心，法院作为中立的审判者无权否定原告的撤诉权。最后，完善民事二审程序诉讼费用分配规则，首先尊重当事人合意的分配方案，若达不成合意，应当由原告负责一审程序和二审程序所产生的诉讼费用，仅有二审程序的费用适用减半收取规则，一审程序应全额收取。

Withdrawal of suit is a kind of action of the parties exercising the right to dispose in the civil suit, and it is the extension of the spirit of autonomy of private law in the procedure. Withdrawal of suit system is a very important litigation system in the civil suit. In our country, due to the late start of civil withdrawal system, there are many defects and deficiencies, especially the withdrawal of prosecution system of second instance, until 2015 the introduction of judicial interpretation has been clearly standardized system. To clarify the right of plaintiff to withdraw prosecution in the second instance procedure would not only improve the withdrawal system, but also provide legal basis for judicial practice. However, while affirming the legislative progress, we should also note that there are still many problems in the existing norms. For example, the court has too much power, which makes the system of the defendant's consent can not play its due restrictive role. The language of the law is not standard; The plaintiff is prohibited from reclaiming the same dispute as unreasonable. Therefore, it is necessary to further study the system of withdrawing prosecution in the second instance of civil procedure and provide feasible suggestions for the legislative perfection of the system.

Part One summarizes the system of withdrawal of prosecution in civil second instance. First of all, starting from the concept of withdrawal of prosecution in civil second instance, it leads to the academic controversy on whether the parties can withdraw the prosecution in civil second instance. Then, after summarizing various viewpoints in the academic circle, it is concluded that the plaintiff should be allowed to withdraw the suit in the second instance procedure based on the principle of punishment, the subject status of the parties and the balance between first and second instance. After that, it expounds the constitution and legal effect of the system of withdrawal of prosecution in civil second trial. Finally, the paper summarizes the system evolution and practice status of the system, and points out the existing problems of unclear distribution standard of litigation costs and conflict of judgment logic.

The second part focuses on the extraterritorial withdrawal system and makes a comparative study. Because of the origin of civil litigation system between China and civil law system countries, and the closer relationship between current legal terms, theoretical norms of civil law system and continental law system, Germany and Japan are chosen to make comparative study of civil law system. The withdrawal system established by Germany and Japan is more perfect, including the scope of withdrawal, the period of withdrawal, the constituent elements and the

legal effect.

The third part focuses on the existing problems of the system of withdrawal of prosecution in civil second instance, which can be summarized as follows: First, after the plaintiff withdrew prosecution in civil second instance procedure, it is unreasonable to absolutely prohibit the plaintiff from resuing with the same dispute. Second, the court's intervention power is too large, and the court has the power to veto the plaintiff's right to withdraw in the second instance procedure, which will not only damage the normal exercise of the plaintiff's right to withdraw, but also make the defendant's right to consent system play no due restrictive role. Thirdly, the litigation cost burden rule is not clear, and the litigation cost burden of the system of withdrawing the lawsuit of second instance in the judicial practice presents various chaotic images.

The fourth part, in view of the existing problems, explores the perfect way to withdraw the prosecution system of civil second trial. First of all, it deals with the problem of relitigation on the same dispute after the withdrawal of the lawsuit in the second instance. That is to say, relitigation is prohibited as the principle, but the parties with new interests or new facts and continuously changing personal relationship are allowed to resue. Secondly, balance the right of

action and judicial power, the specific approach is to strengthen the defendant's right of action, weaken the power of the court. The court as a neutral judge has no right to deny the plaintiff's right to withdraw the suit. Finally, we should improve the distribution rules of litigation costs in civil proceedings of second instance. Firstly, we should respect the distribution plan agreed by the parties. If it fails to reach an agreement, the plaintiff should be responsible for the litigation costs generated by the first instance and the second instance procedures.