設定與限制：論民事上訴審中的撤訴

Confirmation and Restriction: Theory on Withdrawal in the Appeal for the Civil Procedure

無論從解釋論概念的應有含義出發，還是基於制度目的等考量，撤回上訴都不能等同上訴審中的撤訴，前者也不能涵蓋或替代後者。否定上訴審撤訴制度的獨立性或將兩者混同，不僅有違民事訴訟處分權主義的基本要求，也造成我國司法實務的難題與困境。基於民事訴訟處分權原則的完整性要求，必須在撤回上訴制度之外單獨設定上訴審的撤訴制度。與此同時，基於當事人平等原則、訴訟經濟等因素考量，應當在撤訴要件與撤訴的法律效果方面限制原告在上訴審中的撤訴。

Whether in terms of the proper meaning of the concept, or based on the consideration of institutional purpose, abandonment of the appeal should not be understood as equivalent to the voluntary dismissal in the appeal. The former could neither cover nor replace the latter. To deny the voluntary dismissal system in the appeal or to intermingle it with the abandonment of the appeal is contrary to the doctrine of disposition and will lead to problems and dilemmas in judicial practice. The dismissal system in the appeal must be set up separately in addition to the system of abandonment of the appeal, which is required by the integrity of the doctrine of disposition. However, based on the principle of equality of the parties and litigation economic considerations, we should consider and restrict the voluntary dismissal in the appeal, in the aspects of dismissal factors and its legal effects.