The Study On The Dissent Of Criminal Jurisdiction

The system of objects to the criminal procedure jurisdiction has an important role in safeguarding the legitimate rights of the parties, which can also make the entire criminal judicial procedure run smoothly. However, China's criminal procedure law is silent on the system, which is difficult for public security organs to handle the objection of judicial jurisdiction from the parties, even influences the justice and smooth proceeding of criminal procedure. But this doesn't mean the system can not survive in our country, instead, flexible provisions about jurisdiction in our country and explorations of judicial practice provide the existent space for the construction of this system. Meanwhile, the provisions of this system in other countries and regions are more mature, which has certain significance in the construction of the system in our country. To construct this system in China,the most important thing is to design the specific procedures: We should clarify the types of the criminal jurisdiction objection, startup procedure, processing procedure, remedy procedure and related measures; we should try our best to design relatively perfect regulations, safeguarding the criminal prosecution smooth.Except the introduction and conclusion, this paper consists of three parts,about thirty thousand words.The first part is an overview of the system of criminal jurisdiction objection, which mainly expounds the concept, nature, type and value of this system. Firstly, this paper makes a preliminary definition for objections to the jurisdiction and then limits the persons to the criminal suspect, the defendant, or private prosecutor who have the rights to put forward objections to the jurisdiction, and further analyzes the nature of criminal jurisdiction objection. From the perspective of the victim, criminal jurisdiction objection is a right to participate in the criminal procedure; from the perspective of the prosecuted that is a procedural right to defense. On this basis, this part mainly explains the differences between our country's system of criminal jurisdiction objection and extraterritorial systems. This system in our country includes not only objections to jurisdiction in trial, but also functions of the objections to jurisdiction. Finally, this part discusses the values of criminal jurisdiction objection, which can implement the principle of equality between the prosecution and the defense, maintain the legal rights and interests of parties, improve the efficiency.The second part is mainly to analyze the current situation of our country's criminal jurisdiction objection as well as the reasons for absence. Although the Supreme People's Court has done authoritative answer to jurisdiction objection raised by the parties in judicial practice, but the system of criminal legislation in China is still a blank. The lack of legislation causes the public security of judicial organs to deal with jurisdiction objection raised by the parties in different ways in judicial practice. Some directly refuse, some with administrative way, and some with procedural way to ruling. Of course, the most common still is to be rejected directly for "no legal basis". The system of criminal jurisdiction objection regardless of the parties or of the entire judicial system has important significance, but China's Criminal Procedure Law keep silent on it. Investigating its reason, there are not only constraints on the concept of litigation but also system restriction. In this regard, I will conduct a detailed analysis.The third part focuses on the specific ideas about the system of criminal jurisdiction objection in our country. This paper firstly demonstrates the feasibility of the system in China. While China's criminal legislation keeps silent on this system, the experience from judicial practice, civil and administrative legislation as well as foreign mature legislation provide some reference experience for the construction of the system in our country. Secondly, the author proposes the principles which must be implemented in the process of building the system: fairness and efficiency. The author advocates that the specific settings in the procedures must seek the best combination between fairness and efficiency and achieve the greatest degree of balance between fairness and efficiency. On this basis, the paper mainly discusses the concrete construction of criminal jurisdiction objection in our country. In this section, reference to the successful experience of other departments and foreign legislation, the specific construction of criminal jurisdiction objection in our country includes four aspects: start-up, processing, the validity of the original lawsuit act and relief program. In the start-up stage of this procedure, the author comprehensively considers the interests of parties and the results of objection to jurisdiction as well as the strength of each party, then concludes that criminal suspects, defendants, the victim and the private prosecutor have the rights to put forward criminal jurisdiction objection. Further,the author points out only the four subjects mentioned above can put forward criminal jurisdiction objection to relevant organs, when the public security judicial organs which have accepted cases have no or unfavorable rights of jurisdiction. In the processing procedure, after receiving the application of criminal jurisdiction objection, the court should review whether the application raised by the parties is reasonable or not, then sends a copy of the application to the other party and the public security judicial organ which accepted the case. Meanwhile, the organ accepting the case should generally suspend the original proceedings; then the court receiving the application reviews the criminal jurisdiction objection and makes the results. To the results of the objection to jurisdiction, each party can exercise the right of procedural relief. In addition, when the objection to criminal jurisdiction is established, what is the validity of the original lawsuit act? The author is in favor of partial effectiveness theory. One reason is the timely requirements of detection behavior; another is certain litigation actions is the inevitable. Of course, the public security judicial organ which has been ruled to have jurisdiction over the case should review the legality and legitimacy of the detection behaviors as well as the necessary legal lawsuit acts, so as to decide whether to maintain, dissolute or correct. Finally, in order to make the system run better, some measures should be taken, improving the existing criminal jurisdiction system, establishing jurisdiction told system and so on.