当事人询问及其在行为保全程序中之构建

当事人是案件过程的亲历者,其陈述助益真实之发现。同时,当事人与案件结果具有利害关系,其陈述可能阻碍真实之发现。鉴于此,诉讼程序一般将当事人询问规定为补充性证据,并居于证据种类排序的末位。但是,在以简易行为保全程序中,首先询问当事人既能契合程序快速机制,又可满足被申请人的程序保障需要。当事人询问在行为保全程序中的构建,应充分考虑行为保全目的、变迁和行为保全程序设置原则。

On Inquiring the Litigants and its Setting up in Act Preservation Procedure

The litigant is a witness of the whole case, whose statement can facilitate the restoration of truth. At the same time, the litigant has a stake in the outcome of the case and his or her statement may hinder the restoration of fact. In view of these possibilities, the judicial procedure generally takes the statements derived from inquiring the litigants as supplementary evidence, and places them at the bottom of all types of evidences.However, in a simple act preservation procedure, inquiring the litigants at first can not only fit the requirement of simple litigation procedure, but also can meet the needs of procedural protection of the respondent. The setting up of inquiring the litigants in the act preservation procedure should give sufficient consideration to the purpose and transformation of act preservation and its principles on act preserving procedure setting.