程序性辩护之初步研究

程序性辩护是辩护方行使诉权的一种重要方式,其直接目的是促使法庭宣告警察、检察官或法官的程序性违法行为无效,从而使“官方违法者”遭受某种程度的惩罚和制裁,使被侵害的权利获得司法救济。我国应按照诉权与裁判权相互制衡的理论,重新构建程序性辩护制度。当然,当前我国程序性辩护制度的重构还面临很多现实困境和体制上的障碍。

On Procedural Defense

Procedural defense is an important means by which a defender secures his right in the action, the direct aim of which is to urge the court to nullify, if any, illegal acts of the police, the prosecution or a judge. Thus, in some extent, law-breaching officials will be punished or sanctioned and the litigants whose rights have been impinged may obtain judicial remedies. This author determines that China should reconstruct its procedural defense system in accordance with the doctrine of balance of litigants’ right and judicatory right. Certainly, to do so, China must solve many practical problems and get over some systematical obstacles.