当事人询问在行为保全程序中之构建

当事人是案件过程的亲历者,是事实认定的最佳信息来源,其陈述助益真实之发现;当事人与案件结果具有最密切的利害关系,是最差的证人,其陈述阻碍真实之发现。鉴于当事人对案件真实发现正反两面之功效,向来以正确而慎重裁判之达成为目的诉讼程序,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。而在以简易、迅速而经济裁定之达成为目的之行为保全程序中,首先询问当事人既能契合程序固有的快速解决机制,又可以满足被申请人甚至案外人之程序保障,使得法官尽早掌握案件要点。因此,取消当事人询问之补充性地位,并置于证据种类排序的首位更符合诉讼目的。

The Building of Litigant Inquiry in the Act Preservation Program

Parties are the witnesses of the process in the case,whose statements would be the best source of information to found the facts of the case,which is helpful to real discovery;Parties have the closest interest with the outcome of the case, so they are the worst witness, which hinder the discovery of truth. Because of the positive and negative effects of the parties in finding the real case, the proceedings which are always with the purpose of correct and prudent verdict specify the litigant inquiry as supplementary and put it in the bottom of category of evidence. But in the behavior preservation program that aiming at simple rapid and economic verdict, firstly inquiring the litigant would not only fit the rapid settlement mechanism in the inherent procedures, but also meet the procedural safeguards of applicant even outsider, which enable the judges to grasp the merits at the earliest possible stage. So, for better meeting the purpose of the proceedings, we shall cancel its complementary status and place litigant inquiry in the first of category of evidence.