民事诉讼中的程序异议权研究
占善刚民事诉讼中的程序异议权研究
Study on the Right of Procedural Objection in Civil Proceedings
期刊名称：《法学研究》
期刊年份：
作者：占善刚
单位：武汉大学法学院
中文关键词：程序异议权;程序利益;瑕疵治愈;程序安定;诉讼经济原则
英文关键词：right of procedural objection;procedural interests;defect healing;procedural stability;economic principle in litigation
中文摘要：
在民事诉讼中，程序异议权是一方当事人所享有的指责受诉法院及对方当事人所实施的诉讼行为违反诉讼程序进而主张其无效的权利。程序异议权确立的依据在于保障民事诉讼程序合法、妥当地进行，维护诉讼程序的安定。当事人应当及时行使程序异议权，迟延行使将会导致程序异议权的丧失。当事人可以舍弃程序异议权，但仅限于针对主要或专为当事人进行诉讼的便利等程序利益而设的具有私益性质的诉讼程序规范所规制的诉讼行为。当事人舍弃程序异议权与程序异议权的丧失具有同一法律效果，即违反了诉讼程序的诉讼行为由于当事人未及时提出异议或者放弃异议而使得所存在的程序瑕疵予以消除，并成为自始有效的诉讼行为。
英文摘要：
In civil procedure, the right of procedural objection refers to the right of one party to claim that the litigation activity of the other party or the court violates litigation procedure and therefore is invalid. The purpose of establishing the right of procedural objection is to ensure that the civil litigation is carried out legally and smoothly and to guarantee the stability of civil procedure. It should be noted that the parties must exercise the right of procedural objection in a timely manner, or they would not be entitled to exercise it in the following proceedings. Another thing to which great attention has to be paid is that a party can abandon the right of procedural objection only if the illegal action conducted by the other party or the court is mainly or especially designed to offer litigation convenience to the parties, which means that these actions are of private nature according to procedure rules. As for the legal effect of not exercising the right of procedural objection, there is no difference in the two cases mentioned above. That is to say, the procedural defects caused by the illegal action of the court or one of the parties will be cured if the right of procedural objection is either not exercise in time or abandoned voluntarily. As a result, the action that violates the procedure will no longer be regarded as illegal and will be valid from the beginning to the end of the litigation.
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