证人出庭作证费用的性质及其给付路径

摘要

在民事诉讼中，证人出庭作证系证人向代表国家行使裁判权的法院所尽之公法上的义务，为因应证人作证义务之公法义务性质并求权利义务相一致，证人出庭作证费用理应由法院代表国家向证人给付。证人出庭作证的费用最终须作为诉讼费用的一部分而由当事人负担，这是当事人请求国家依民事诉讼程序解决彼此间的私权纷争所应尽的公法上的负担，与证人出庭作证费用由法院给付分属两个不同的法律关系。在我国民事诉讼中，证人出庭作证费用的应然给付路径为：证人在履行了出庭作证义务的合理期间内，请求受诉法院给付其支出的合理费用，并由受诉法院围绕证人的请求是否合法作出相应的处理。%In civil litigation,the system of the witness to appear in court to testify the court on which was on behalf of the state to exercise the jurisdiction of public law obligation,for a witness to testify obliga-tions consistent with the nature of public law obligation and rights and obligations of and witness to testify fee payment should be paid by the court on behalf of the state to witness.The cost paid to the witness to testify of final shall be as part of the litigation fee shall be borne by the party,this is the requesting state in accordance with the civil procedure solving private rights disputes between each other should do the burden on the public law,and the witness to testify cost by the court to pay belong to two different legal relations.Civil lawsuit in our country,the ought path of the costs of witness to testify is:witness in the performance of the obligation to testify in within a reasonable period,request the appellate court to pay the reasonable fees,it is by the appellate court about whether the witness's request is legal to make the corresponding processing.