论颠覆性程序辩护——以管辖异议的有效利用为例

On Subversive Procedural Defense:Taking as an Example the Effective Use of Jurisdictional Objection

颠覆性程序辩护指程序违法极为严重和明显从而足以对案件结果产生重大影响的程序性辩护。管辖异议是常用的程序辩护手段,有成为颠覆性程序辩护的可能,尤其是地域管辖异议。程序辩护即坚守程序正义,立法者和司法者应当扩大程序辩护的空间而非封堵之。立法应更明确地规定程序严重违法的表现、后果及救济途径,尤其需尽快确立和完善管辖异议制度。

Subversive procedural defense refers to any procedural defense with regard to any procedural violation that is so serious and obvious as to exert a significant impact on the outcome of the case.As one commonly used procedural defense,it is possible for jurisdictional objection,especially territorial jurisdiction objection,to become a subversive procedural defense.Procedural defense means adherence to procedural justice,whereby legislators and judicial officials should expand the space for procedural defense rather than blocking it.The law should be more explicit in the manifestation and consequence of,as well as means of redress for,serious procedural violations,and in particular,establish and improve the jurisdictional objection system as soon as possible.