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长期以来,在我国的审判实践中,关于撤诉问题的主流观点是:撤回起诉只能存在于一审程序中,撤回上诉只能存在于二审程序中。对于原审原告能否在二审中撤回起诉,这是个十分新颖而又颇具争议的问题。民事诉讼法对此未作规定,使得理论界与实务界产生很大的分歧。笔者认为,原审原告不能随意在二审中撤回起诉,但只要对方当事人同意,将上诉与起诉一并撤回,终结诉讼,法院则应予准许。准许原审原告在二审中撤回起诉符合意思自治原则民法上的意思自治原则,又称私法自治原则,是指“私人相互间的法律关
For a long time, in our country’s trial practice, the mainstream opinion on the issue of withdrawing a lawsuit is that the lawsuit of withdrawal can only exist in the procedure of first instance, and the withdrawal of an appeal can only exist in the procedure of second instance. It is a very new and quite controversial issue whether the trial plaintiff can withdraw the prosecution in the second instance. Civil Procedure Law does not provide for this, making theorists and practitioners have great differences. The author believes that the original trial plaintiff can not withdraw the prosecution in the second instance, but as long as the other party’s consent, the appeal and prosecution were withdrawn, ending the lawsuit, the court should be allowed. To allow the original trial plaintiff in the second instance to withdraw prosecution in line with the principle of autonomy of the principle of autonomy on the principle of autonomy of the law, also known as the principle of private law autonomy, refers to the ”legal inter-personal