私权自治并不能证成二审撤诉权的自由行使,《民事诉讼法》第13条、第157条也不能成为二审撤诉权的规范依据。二审撤诉权必须以《最高人民法院关于适用〈民事诉讼法〉若干意见的规定》第191条为适用依据。在原告申请撤诉、被告同意撤诉且生效判决尚未确定等要件之下,方可允许原告撤回起诉,且应通过禁止再诉防止原告滥用诉讼权利。 The autonomy of private rights can not be justified as the right of second instance to withdraw its own right of action. Articles 13 and 157 of the Code of Civil Procedure can not be normative basis for the rights of second instance. The right of second instance withdrawal shall be based on Article 191 of the Provisions of the Supreme People’s Court on Several Opinions on the Application of the Civil Procedure Law. Only when the plaintiff applies for withdrawal of a lawsuit and the defendant agrees to withdraw the lawsuit and the judgment in force has not yet been confirmed, may the plaintiff be allowed to withdraw the prosecution and the plaintiff shall be prevented from abusing the lawsuit right by prohibiting the re-appeal.