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撤诉的概念和性质 行政诉讼法第五十一条规定:“人民法院对行政案件宣告判决或者裁定前,原告申请撤诉的,或者被告改变其所作的具体行政行为,原告同意并申请撤诉的,是否准许,由人民法院裁定。”第四十八条还规定:“经人民法院两次合法传唤,原告无正当理由拒不到庭的,视为申请撤诉。”根据行政诉讼法的这两条规定可以看出,行政诉讼中的撤诉是行政诉讼原告在人民法院作出裁判以前申请放弃起诉权,人民法院经审查决定是否准许的诉讼制度。撤诉的内涵包括:原告主动申请撤诉或因违反法定程序被视为撤诉的行为,经人民法院审查决定是否准许撤诉,或者按撤诉处理,从而终结案件的审理。 有些行政诉讼法著作通常认为撤诉是原告在诉讼期间依法放弃诉讼权利的单方行为,即取消已经向人民法院提起的诉讼,是法律赋予原告的一种诉讼权利。
The concept and nature of withdrawal proceedings Article 51 of the Administrative Procedure Law stipulates: “Before the people’s court declares a judgment or ruling on an administrative case, the plaintiff applies for withdrawal of a suit, or the defendant changes the specific administrative act it has made, and the plaintiff agrees and applies for the withdrawal of the suit, ”The 48th article also stipulates:“ After the court twice summoned the plaintiff and refuses to appear in the court without justifiable reasons, he shall be deemed to apply for the withdrawal of the suit. ”According to these two provisions of the Administrative Procedure Law, It can be seen that withdrawing a suit in administrative litigation is a procedure in which the plaintiff of an administrative lawsuit applies for renouncing the right to sue before the people’s court makes a decision, and the people’s court examines and decides whether or not to allow the suit. The connotation of withdrawing a suit includes: the plaintiff voluntarily applies for withdrawing a suit or is deemed to be withdrawing a suit for violating legal procedures. After the people’s court examines and decides whether to withdraw the suit, or according to the withdrawal suit, the trial of the case ends. Some administrative litigation law works usually consider withdrawal of a plaintiff as the unilateral act of abandoning litigation right according to law by the plaintiff, that is, canceling a litigation that has been brought before a people’s court is a litigation right conferred on the plaintiff by law.