程序保障視角下證據調查請求權的理論構造

Theoretical Construction of the Right to Request Evidence Investigation from the Perspective of Procedural Protection

在當事人主義訴訟模式下，基於辯論主義的要求，提出證據是當事人的權限，即當事人擁有請求法院調查證據的權限。當事人對證據的選擇是法院作出裁判的前提，法院調查的證據範圍限於當事人提出申請的範圍。法院的證據調查實施權受制於當事人的證據調查請求權。當事人通過證據申請的形式行使證據調查請求權，證據申請必須適式、適時。從當事人之間的關係來看，對方當事人有權對證據申請提出異議，可以提出證據抗辯。當事人的證據調查請求權應當依法受到保障，法院不得預斷證據價值，不得基於對證據價值的消極預測拒絕對當事人提出的證據申請實施證據調查。當事人的證據請求權具有督促法院調查證據的效力。僅在證據申請不合法、證據調查沒有必要以及證據調查存在難以預料的障礙時，法院才可以拒絕調查。

Under the litigant－oriented litigation model, it is the right of the litigant to present evidence based on the requirement of argumentation. The parties have the right to request the court to investigate evidence. The choice of evidence by the parties is the prerequisite for the court's decision. The scope of evidence investigated by the court is limited to the scope of the application made by the parties. The enforcement power of the court's evidence investigation is subject to the right of the parties to request evidence investigation. The parties exercise the right to request evidence investigation through the form of evidence application, and the evidence application must be proper and timely. From the perspective of the relationships between the parties involved, the opposing party has the right to raise objections to the evidence application and can raise evidence defenses. The right of the parties to request evidence investigation should be protected according to the law , and the court is prohibited from pre－judging the value of evidence and restricting or excluding the evidence applied by the parties. The right of the parties to request evidence investigation has the effect of urging the court to investigate the evidence. The court may refuse an investigation only if the evidence application is illegal, the evidence investigation is unnecessary, or there are irregular obstacles.