Research On The System Of Civil Action Preservation

With the rapid development of social economy, the increasing demand of judicial justice and judicial efficiency, which are expected by people, is becoming higher and higher. In 2012, the standing committee of the National People’s Congress launched a comprehensive revision of the "civil procedure law", putting the act preservation in the scope of civil protection procedures. In February 2015, the supreme people’s court has issued "the judicial explanation of the civil procedure law of the People’s Republic of China", making further systematic rules. It is in this background, which based on the research results of the civil procedure law scholars; this paper did specific investigation and got some real data, introducing the current macro and micro situation of act preservation. After that, this paper attempts to do further systematic research on act preservation procedure, trying to construct excellent act preservation procedures, adapting and matching our country civil action mechanism. This paper consists of introduction and body of four chapters.Chapter one:the basic theories of act preservation:This chapter includes five contents:first, the article talks about the concept of act preservation system. In a theory system, the status of ontology in the logic is the starting point; it is to explore the foundation of a certain social phenomenon which exists. Therefore, for any one concept, "what is it" is the question that we must first define and answer. To make sure that security concepts are clearly defined, this paper will respectively analyze the three following points one by one:"the differences between act preservation and relevant concepts", "the natural definition of act preservation" and "the purposes of act preservation". And then this paper draws the following conclusion of act preservation, which is a civil special procedure:in the civil lawsuit, in order to ensure the content will be effectively conducted, or avoid the damage of interests of the parties as well as irreparable damage, the court may allow their application, instructing the applicant to conduct or not to for a certain behavior. Act preservation, of course, the connotation and extension of the concept of interactive relationship is not static, but with the enrichment of the judicial practice, will present the process of dynamic change. Therefore, the concept has yet to be further perfected. Second, the author mainly introduced the history of act preservation. Third, according to the different classification criteria, this paper gives different types of act preservation, for the construction of civil litigation act preservation system should not stop at the new concept of simple appended, but should focus on the accurate positioning on the basis of different types of security, making the corresponding system design. Fourth, putting act preservation into law is meaningful. This section contains the basis of theory of value orientation and the significance of practical guidance form two angles of the meaning of act preservation. The former includes fair value and efficiency value, the latter includes: the harmony with civil substantive law on the function point, to ensure the integrity of the civil preservation system architecture, maintain seriousness and authority of court effective judgment and expand the social function of modern judicial adjudication. Finally, the author mainly introduced the procedure of act preservation in present China.Chapter two:Comparative investigation of act preservation system:As a saying goes, "Chinese construction of rule of law depends on improving people’s "cultural identity", which needs an open mind, the attitude of eclecticism on different legal system, as well as the step-by-step strategy". Throughout the two legal systems, main representative countries and regions have already established the system of act preservation in order to solve the contradiction between "hysteresis" of lawsuit and the urgency of act preservation, which is on the premise of the pursuit of justice, efficiency and order. Therefore, we can learn a lot from the construction of act preservation system in western countries. In fact, the civil procedure law scholars has carried on the thorough research on the western act preservation system, so, in this paper, it seems to be too difficult for me to make a more novel. Therefore, this article attempts to analyze western act preservation system from the perspective of comparative case-investigation, combined with relevant theory.This chapter mainly uses the research methods of comparative analysis and case analysis, introducing and analyzing the historical evolution of act preservation program, together with the process of act preservation in main countries of two important legal systems. As early as in ancient Rome, there was "no writ", and then after church law "entitled to relief",European royal "new occupation suit", it gradually formed as "interlocutory injunction" in common law system and "false disciplinary system" in civil law system. In continental law system, this article mainly introduced the Germany, Japan, France and our country Taiwan area’s "false disciplinary system", including the classification and the usage, and analyze the cases such as "Wang Jin-ping false disciplinary case"; In Anglo-American law system, this paper focuses on the cases, such as Polaroid corp. v. Eastman Kodak Co., Winter v. Natural Resources Defense Council, to analyze the four elements in Anglo-American law system, including:successful possibility, irreparable damage, equity interest and public interest.Chapter three:the present situation of act preservation system in China:The act preservation system was increased in the new civil procedure law of 2012 in our country, but through the analysis of the provisions on act preservation, it is not hard to find that the relevant provisions of the act preservation system is slightly contracted, particularly in the field of specific applicable regulations, not only to be too ambiguous, but also to be blank, which is easy to cause chaos in the process of implementation. And, more importantly, in the face of such a principle, we even don’t know the real usage of act preservation in the judicial practice, so, the practical investigation in this chapter is just an attempt to break through.This chapter is divided into three contents:first, what the empirical research is under the background of new civil procedure law, which is the focus of this article. First of all, through the "paper of people’s court" and "Chinese judgment document net", this article makes a research on a large number of case studies, and then has a clear understanding of the status quo:along with the promulgation of the new law, the application rate of act preservation presents the increasing trend year by year, but the applicable scope of the act preservation still has limitations, mainly existing in intellectual property disputes, family marriage disputes, environmental pollution disputes, etc. Second, this paper carried on the comparative analysis about the micro usage of present situation in the courts at all levels. Through the survey of judges in five provinces of fourteen courts, we could find that most of the judges keep a positive attitude on act perseveration, but in the judicial trial practice, the use of act preservation did not change significantly, and the judges are eager to remind lawmakers to make clear and explicit laws and regulations. Second, this article talks about the current legislation of act preservation under the applicable scope, mainly including the case analysis in intellectual property rights "ban" before litigation and so on. The third is the comments on the status quo of act preservation. Just as an old saying goes:"learning, and then know the reasons". From the points of macro and micro status, the problems of act preservation are obvious; the reasons are as follows, including subjective and objective factors:the lack of national consciousness of the rule of law, the influence of personal factors on the judicial operation, the judicial security administration color of strong negative impact and judge the limits of use of "discretion".Chapter four:inquiry of problems for act preservation system:This chapter includes five contents:first, we should reasonable define the scope of act preservation. To begin with, this paper repositions the roles between act preservation and advance execution, when coping with the "mixed" of act preservation and advance execution in judicial practice, we should put the two kinds of situations:"the need to immediately stop the infringement, eliminate the obstruction" and "the need to immediately put a stop to a delete" out of advance execution, shifting to conduct security regulation. Besides, based on the principle of "where there is a damage, there is a relie"; act preservation is suitable in nearly all kinds of civil lawsuits. But act preservation should not break through the limits of the litigant’s disposition right, according to particular case. Second, the act preservation of the jurisdiction of the court and start the program should be seriously considered. Third, the examination of act preservation, including trial way, examination principle, examination standard as well as "the case" discussed in this paper. The fourth part is mainly about the guarantee measures of act preservation system. Finally, the relief measures of act preservation system include the objection application, cancel the application and compensate for loss.