诉前证据保全之适用

Application of Pre-Trial Evidence Preservation

与诉讼中的证据保全相比,诉前证据保全在功能上更加强调确定事实、促进诉讼、预防诉讼和减免诉讼;在条件上要求存在更加紧急的情况;在程序上必须由利害关系人提出申请,法院不得依职权适用;在程序保障上要求更多地考量对被申请人程序权利和程序利益的保护。我国《民事诉讼法》增设诉前证据保全是一个新的突破,但在类型上仍属于传统证据保全的范畴。面对社会转型、社会矛盾和纠纷解决的巨大压力,实现我国证据保全制度现代性转型是我们必须完成的任务,也是适用诉前证据保全的一个重要指向。

Compared with the evidence preservation in litigation,pre- trial evidence preservation functionally puts much emphasis on the establishment of facts,promotion of litigation,prevention of litigation and remission of litigation; conditionally the existence of a more urgent situation is required; procedurally the application only from the interested party is required,which means the court cannot initiatively apply it; in procedural safeguard,more consideration to the protection of the applicant's procedural rights and interests is required. The new establishment of pre- trial evidence preservation is considered as a new breakthrough in China's civil procedure law,though it still belongs to the category of traditional evidence preservation. In the face of the great pressure generated by the social transformation,the social conflicts and dispute resolutions,promoting the modern transformation of the evidence preservation system is an urgent task for us as well as an important guide for the application of pre- trial evidence preservation.