大陆法中的诉讼行为无效制度——三个法律文本的考察

Institution of Invalidation of Acts in Action in Civil Law System——the review of three legal texts

针对警察、检察官、法官的程序性违法行为 ,大陆法国家建立了旨在制裁这种违法行为的诉讼行为无效制度。尽管在大多数场合 ,程序性违法行为需要由刑事诉讼法明确规定无效之后果 ,但越来越多的国家接受了“实质性无效”的理念 ,使得宣告诉讼行为无效与提供权利救济结合起来。同时 ,在宣告无效的实施问题上 ,大陆法国家尽管有时允许利害关系人直接行使诉权 ,但更多地保留了法官依据职权主动加以救济的传统。

As to the procedural illegal acts of police, prosecutors, and judges, the institution of invalidation of acts in action has been established in the civil law countries to punish such illegal acts. Although the procedural illegal acts require criminal procedure law to explicitly prescribe the results of the invalidation on most occasions, more and more countries have accepted the notion of 'substantial invalidation', which makes the announcement of invalidation of acts in action combine with providing relief of right. At the same time, in the aspect of the implementation of announcing the invalidation, the civil law countries sometimes permit the parties at stake to exercise their right of action directly, but at a larger degree they retain the custom that judges render remedies voluntarily under their powers and functions.