现代行政诉讼与民事诉讼均以辩论主义为原则,即法院以当事人提供的诉讼资料认定事实,并据以裁判,而不依职权主动收集诉讼资料。司法的中立性要求裁判者对诉讼材料的提供应尽可能保持消极地位。过度依职权取证违背诉讼双方当事人地位平等和诉讼程序公正的原则。但辩论主义也有其不足之处,辩论主义效果的发挥有赖于当事人的诉讼能力,且对于不利于自身的资料不主动提供,法院便无法查清有关公共利益或程序性的事实,因而为维护公共利益和提高司法能力的需要,就应允许法院依职权调取证据。《最高人民法院关于行政诉讼证据若干问题的规定》(以下简称《证据规定》)第22条规定了人民法院依职权取证的两种情形,但司法实践中对依职权取证的决定、调取及出示与说明程序均没有具体的操作规则。本文拟对这些问题试作探讨。 Both modern administrative lawsuit and civil lawsuit are based on the principle of debate. That is, the court finds the facts according to the litigation materials provided by the parties and referee according to them, instead of taking the initiative to collect litigation information without authority. The neutrality of judiciary requires that the referee should provide the litigation material with the negative status as much as possible. Excessive excuse to take evidence violates the principle of equal status of both parties to the litigation and procedural fairness. However, the debate also has its own shortcomings. The effectiveness of the debate depends on the parties’ litigation ability. The court can not find out the public interest or procedural facts about the information unfavorable to itself. Therefore, in order to safeguard the public Interests and the need to improve judicial capacity, courts should be allowed to obtain evidence on their excuse. Article 22 of the Provisions of the Supreme People’s Court on Several Issues Concerning the Evidence in Administrative Proceedings (hereinafter referred to as the “Provisions of Evidence”) stipulates two situations in which people’s courts may obtain evidence on the basis of their respective functions and powers. However, in judicial practice, There are no specific rules governing the presentation and specification of the program. This article tries to discuss these questions.