本文立足于在保全程序中当事人的程序参与和法官的裁量自由这一对矛盾,试展示“法定”与“裁量”的互相作用在保全程序中的特殊表现和该种表征背后的正当性原理,也就是通过法定分担风险的制度来消解裁量中利益衡量的风险,并以此原理初步解释我国保全程序存在的问题。 This article is based on the contradiction between the procedural participation of the parties and the freedom of discretion of the judge in the preservation procedure, and the special performance of the interaction between the “statutory” and the “discretion” in the preservation procedure and the The principle of legitimacy, that is, the legal risk-sharing system to eliminate the risk of the measurement of interest in the discretion, and based on this principle, the problems existing in the preservation procedure in our country are explained.