论诉讼保全中的利益权衡问题

保全请求在客观上考验着法庭的审判能力。在快速审理的压力下,法庭必须依据有限的事实迅速裁定。由于这种裁定是在权利义务关系尚未明确甚至诉讼尚未提出之前作出的,因此,容易忽略被申请人的利益,但完全不考虑被申请人的利益是违背法所追求的公平和正义原则的。保全命令,实质上是法庭在对申请人、被申请人和公共利益等各方利益进行权衡之后做出的价值判断。

Study on the Interest Balance in the Procedural Preservation

Making the order of procedural preservation is an ordeal for the trail ability of the judge. Because it is decided after a plaintiff fills the petition very soon, the judge must make his judgment that will be affected on the interests of the party under the limited fact and a hurry analysis of the law. As the order is made before the decision and whether the plaintiff will win is unknown, it is unfair and injustice to ignore the interests of the defendant entirely. The enforcement of the order will effect on the public interest. So, the order, in fact, is a value judgment that is made by the judge after he balances the interests of the applicant and the defendant and the public.