The Criticism And Reconstruction Of The Civil Jurisdiction Objection Examination Procedure

In the process of litigation,in consideration of their own interests,some parties abuse their rights to delay the process of litigation and gain time for their own favorable litigation status.In order to achieve the strategy of delaying litigation,jurisdictional objection has undoubtedly become the most commonly used and the most advantageous "litigation weapon".The system of objection to jurisdiction is the litigation right that the legislator gives the litigant in order to remedy the improper jurisdiction of the court,and provides the way of error correction outside the power system for supervising the jurisdiction of the court.But as lawmakers for the regulation of the jurisdiction of the court system is too abstract and general,lead to a lot of parties in the judicial practice using the lack of legal provisions and loopholes,casual or malicious exercise the right of jurisdiction,the court also because there is no enough legal basis,application or appeal to the jurisdiction of the court and the relative mechanical mode of examination,rigid with the parties concerned for the request to the jurisdiction of the court.Based on the civil jurisdiction objection to the view of critique and reconstruction of the review process and the problems existing in the analysis to the jurisdiction of the court review process itself and on the analysis of the causes of problems,combining with the practice to the jurisdiction of the court review process of legislative and judicial status quo,put forward the corresponding institutional improvement opinion,in order to perfect the system design,the author analyses the deficiency of the legislative and judicial practice to improve.This paper is mainly divided into the following three aspects:The first part is the criticism of the civil jurisdiction objection examination procedure.The criticism of this procedure is mainly carried out from three aspects: first,it introduces the legislation and judicial status of the objection review procedure of civil jurisdiction;Secondly,it enumerates the problems in the civil jurisdiction objection examination procedure in judicial practice,including the administrative review process,the legal provisions that illegal evidence must be cross-examined,and the violation of judicial justice and the principle of judicial transparency.Finally,the author analyzes the causes of the problems related to the objection examination procedure of civil jurisdiction,and discusses them from the perspectives of system principle and procedure principle.The second part is the comparative law research of the jurisdiction objection examination procedure.The extraterritorial legislative investigation of this procedure is mainly carried out from three aspects: first,the relevant systems of countries with civil law system are elaborated,including Japan’s jurisdiction investigation procedure and France’s incidental litigation mode.Secondly,it discusses the relevant systems of common law countries,including the jurisdiction objection procedure with the hearing system as the core in the United States and the civil jurisdiction objection system with the jurisdiction defense as the main content in the United Kingdom.Finally,the paper compares and analyzes the relevant systems of the two countries,and analyzes their similarities and differences.The third part is the reconstruction of the civil jurisdiction objection examination procedure.For the reconstruction of this procedure,the core content is to change the civil jurisdiction objection examination procedure into the civil jurisdiction objection investigation procedure.In order to grasp the core content,we must first make clear the advantages of constructing the civil jurisdiction objection investigation procedure,which is mainly discussed from two aspects of breaking the inherent administrative trial mode and realizing the procedure return.After clarifying the advantages of the investigation procedure,we are required to construct the investigation procedure.The author constructs the civil jurisdiction objection investigation procedure from the macroscopic and microscopic aspects.The macro-level construction includes changing the administrative processing mode into incidental litigation mode and promoting the judicial construction of the civil jurisdiction objection processing mode.The micro-level construction includes adding the confrontation and debate between the two parties in the investigation procedure and using the right of action to restrict the jurisdiction.At the same time,to deal with jurisdiction disputes,both parties should actively provide evidence and cross-examine evidence,and the court should determine the facts of the case and make a judgment on the basis of evidence.