Civil Preservation Program Theory

This dissertation systematically examines the theory of civil preservation procedure based on the earlier analysis from scholars in the field of civil litigation, whilst intends to establish a setup of civil preservation which is appropriate and matched to the civil litigation in China. It is composed of preface and six chapters, totally more than 180,000 words.Chapterâ… Preliminary IntroductionThis chapter is extended in two parts. Firstly, it starts by an outlook at the different legislation models over the world, and confines the connotation of civil preservation procedure as a kind of temporary relief system before the final judgment, with the asset attachment over the assets or the temporary injunction limiting the acts subject to the applied party, which is to protect interested applicants from irremediable losses or to safeguard the execution of judgment. The object of preservation should be defined as the right of claim, including the claim of monetary credit, the claim of prestation of specific object and the claim of acts; the object of the preservative measures refers to assets and the wrong, as well as the person under specific cases in some countries or region. Secondly, the characteristic of preservation procedure would be defined as simplification, temporality, auxiliary and non-publicity. The simplification of notice and hearing, the indefinite force of securing decision and measures, the accessory essentials and performance of preservation procedure to the litigation, and the non public and non adversary hearing without notice in advance are specifically demonstrated in this part.Chapterâ…¡The Extensive Theory of Civil Preservation ProcedureThis chapter includes four parts. Firstly, it examines the theory of temporary relief in view of civil judicial relief. First of all, preservative measures, regardless of those against assets or against acts, and those of ensuring guarantees or implements, are specific remedies aimed at the save from any damage in critical circumstances. In a board perspective of right and relief, the ultimate of civil preservation procedure lies on substantive claims, which results to the final relief by the means of taking liabilities; in limited sense, preservative measures are timely, flexible and open temporary remedies before or in the civil litigation, in accordance with the way of "there is damage, there is remedy". Moreover, the approval and carrying out of civil preservative measures should comply with the rule of equity, whether the applicant would suffer irreparable harm, and whether the damage suffered by the applied party subject to the limits would be less than that suffered by the applicant if dismissing the motion. Fairness and good faith are the essential factors in the reasonable ruling as well. Furthermore, as to the fullness of relief, civil preservation procedure is a necessary complement in the relief system, which includes planning the relief object reasonably, the effective measures over the objects of relief, the matching degree between the remedies and the cases, as well as the effect of justice out of the relief. Secondly, the characterization, nature and distribution of civil preservation power are presented in this part. It should be characterized as the judicial power, which is built to fulfill the corrective justice in social orders, and which is an intermediate part of judicial power, in the phase correlation to the trial the execution correspondently. Moreover, according to the nature of power in presence, civil preservation power is divided into the power of preservation trial and that of preservation enforcement, one of which exhibits the judicial nature and the administrative nature the other. As the power aforesaid carries out different parts of function and operation, civil preservation procedure should be divided as preservation trial and enforcement proceedings, which is distributed to the judicial tribunal and enforcement division respectively. Thirdly, the proceeding of preservation trial exhibits dual parts in the litigious and non-litigious nature, the more non-litigious in the preservation proceeding of ensuring guarantees and the more litigious in that of fulfillments. Meanwhile, the proceeding of preservation enforcement exhibits the non-litigious nature much alike to that of the administrative proceedings with active, commanding, one-way and mandatory factors. Fourthly, the instrumental and objective value is examined in this part. As a relatively independent and self-fulfilled subsidiary under the civil procedure in a board sense, civil preservation procedure has the instrumental capacity of promoting the fulfillment of social justice, safeguarding legal orders, ensuring the enforcement of judgments, settling issues in the non-litigious way, and maintaining the authority of effective judgments. In the meantime, it has the objective capacity of procedural justice and effectiveness.Chapterâ…¢The Comparison and Constitution of Civil Preservation System This chapter introduces and comments the developing history and the aspects and operation of civil preservation procedure, upon which a sound model in legislation is to be recommended. In the early era, the writ of injunction initiates out of Roman law, developing through Canon law and Crown law, into interlocutory injunction by setting up the equity relief at the Court of Queen's Bench in the 15^th century, which is the implement of the preservation procedure in the United Kingdom, even throughout the Common law system. Moreover, the attachment, temporary restraining order, preliminary injunction and the Mareva injunction, are the main temporary remedies in Common law counties. Comparably, in Civil law system, the two-set mode of Temporary Attachment and Temporary Disposition was established in German by the time of enacting the code of civil procedure in the 19^th century, which was transferred to Japan and Taiwan and set up successfully. Temporary Attachment consists of the attachment over property and the hold in custody, whilst Temporary Disposition includes that with regard to the specific object and that determining temporary situation, meanwhile in theory which may be differentiated as the Disposition for guarantees and that for implements. As the French mode is concerned, it is set up by the difference from the trial proceeding that it is devised as the impending trial and petition ruling proceeding, which are both enacted in the code of civil procedure law. On contrary to the systematic enactment abroad, the confused legislative mode of preservation entries and the insufficiency of corresponding remedies are presented in China. However, the thorough transplant of the preservation mode of civil law or common law system would not only take an enormous cost of legislation, judiciary and thinking, but be harmful to the legislative stability and judicial continuance. Therefore, this chapter concludes that a unified conception and system of civil preservation procedure should be built up. Civil preservation should be characterized as a kind of procedures with not only static measures but a wholly dynamic progress. It is similar to litigation and enforcement procedures that it consists of proceedings of petition, examination, ruling, enforcement, review or appealing and opposition. Furthermore, it has become a trans-legal department procedure, which is widely used not only in litigation but in arbitration and civil judgment collateral to criminal proceedings. Finally, this part proposed to build up the preservative measures on assets, acts and advance payment in all, by the classification on their objects and functions. Generally, the preservative measure for the claim of object prestation is classified into that on assets, while according to the suitable reference, the measure of advance enforcement is divided as two parts to be subject to the preservation system, one classified into the preservative measure on acts and the other into that on advance payment.Chapterâ…£The Trial Proceeding of Civil Preservation It is the trial proceeding that is the nuclear of preservation procedure and the essential nature with judicial power. This chapter examines the jurisdiction of preservation cases, initiation of the procedure, trial mode according to the cases, norms and substance for examination and the final ruling. Firstly, a unified jurisdiction doctrine is necessary in the preservation, regardless of the phase before or at the litigation, the cases for preservative measure on assets should be controlled over by the forum over the cases hereof, which is preferential and meanwhile has the competence over the cases for preservative measure on acts or advance payment, or that over the assets. Moreover, it is additional doctrines that the preservation competence before the arbitration or over those for the measure on assets before the action, and the competence of the action herein, should be relatively independent. The court at the place with the assets for preservation should accept the petition hereof before the institution of the arbitration, and the forum can not collect the action competence innately even if it takes over the preservation cases before the action. Secondly, the initiation of preservation procedure should be in accordance with the adversary norm. Generally, the court has no authority to institute this procedure over the cases, but for those concerned to the save for underaged children, habeas corpus and public interests otherwise. Thirdly, the trial mode adopted is one-sided participation or confrontation, is subject to the nature of preservation cases. Either has both advantages and disadvantages. The one-sided mode is efficient and flexible which are matched to the procedural features, but for the procedural justice, and which is suitable to cases with compensative and revertible nature for preservative measure on assets; the confrontation mode with oral debate is similar to that in the litigious hearing proceeding, which can prevents from the unexpected ruling to safeguard the justice, but on the contrary to the objective build up in preservation procedure, hereby suitable to the cases for measures on assets and advance payment, upon the procedural function of advance fulfillment of claims. In order to adapt to different occasions and harmonize both needs for procedural features with procedural safeguard, some measure similar to the U.S. temporary restraining order or emergency operating order would be recommended, which with the term of validity is used free from notice. Then the court should call parties for hearing and debate without delay, to ensure whether the ruling of preservative measure is necessary. Fourthly, the norms and substance for examination are important in the trial proceeding. The claim and the necessity of preservation are essentials for the decision of a preservation ruling. As to the object of preservation, it is the substantial factor in the claim of preservation, not only referring to that in the action of prestation in the litigation and enforcement proceedings, but including the interest out of that in the action for confirmation and the action of formation; as to the necessity of preservation, urgency, possibility of prevailing on the merits, comparing balance of interest between the parties and the public interest should be given substantial attention. In addition, the preservation security is the undertakings to the court in light of the right of claiming for damages out of petition malpractice.. According to the norms of security, it can be classified as the undertaking that makes the applicant the creditor of security, and the cross-undertaking that makes the adversary party or others the creditor of security, i.e. the undertaking applicant or the third party provides, which is to give compensation should it become clear later that the preservation order should not have been granted, to prevent from abusing the procedure, or to be an alterative of examining and clarifying the evidence. Moreover, this part concludes that the applicant should provide the undertaking, except for some legal occasions such as the applicant's living difficulties, cases on public hazards and those involved with public interest, with the proof burden for the applicant to prove the reasons for such exemption. Fifth, the preservation ruling has the enforcing force and the rechtskraft. The objective of the rechtskraft hereof includes the substantial and procedural essentials. The preservation would be directly denied without examination on merits if the preservation essentials with the identical applicants had been unredressed under the re-applications.Chapterâ…¤The Enforcement Proceeding of Civil PreservationThis chapter includes two parts. The first one is to introduce general programs, including the institution of the enforcement, service of the ruling and the stay or discharge of the enforcement. As to the institution, it is categorize as that by application and that by authority. Absent of the requirement of default of preservation ruling, the proceeding should be necessarily and reasonably instituted by authority rather than that by application. With regard to the service, it should be performed to the applicant in pre or at the enforcement, so as to collect any property information about the debtor who, however, should be served otherwise at or after the enforcement with notice of relevant rights and obligations of procedural safeguard involved, in case of any transfer or disposition of his property. Secondly, this part refers to the material operations and relevant proceedings of three preservative measures aforesaid. As to the preservative measure on assets, the methods of sealing up, attachment, freeze, selling off, auction and mandatory management; with regard to the preservative measure on acts, the alternative performance can be applied to the enforcement on the substitutable conduct, whilst the fine or detention to that on the unsubstitutable conduct, and indirect compulsory methods can be applied to the enforcement on the omission; concerning to cases for the preservative measure on advance performance, the methods of both measures aforesaid are able to be applicable, in the light of its inherent dual features of both measures. Thus, it is necessary to apply both direct and indirect compulsory methods.Chapterâ…¥The Remedy Proceeding of Civil PreservationThe remedies for the preservation malpractice are mainly on the right of opposition and the right of gaining damages. Firstly, opposition is classified as that by the parties and the third party. The applicant is able to put forward an opposition by filing an appeal against the ruling denying the application; the adversary party can by raising a review against the granted order of preservative measure on assets, or filing an appeal against the granted order of measure on acts or on advance performance. As to the third party, he is able to by raising a review in the first place. If the review application were denied, in the light of different preservation phases, he would bring an action separately or participate into this lawsuit by his independent claim. Moreover, the malfeasance by the court in the enforcement can be filed an opposition. The court shall subjectively inquire of the parties about the conducts after hearing the statements by the opponent, implementing the examination in a short time, and the opponent might raise a review against the ruling denying the opposition, toward the court at the next higher level. Secondly, except for the discharging occasions that the opposition is held, there are additional as following: delay of institute this action, extinguishment of the substantial conditions or other alterations, and undertaking by the adversary party and revoking the preservation ruling, etc. Thirdly, in the case of absence of preservation essentials, the preservative amount much larger than that involved in the claim, error in rent of preservative measures, and other malfeasance ab origine, the parties suffering damages should be compensated. The subjective liability of compensation could be characterization by reference to the types of preservation and the causes of discharging the ruling. In the case of malfeasance ab origine, no-fault liability should generally applicable; in the case of alterations or failure in the lawsuit, the liability of presumptive wrongs should be applied, which could be lessened or exempted from should the applicant have proved himself faultless. The injured party should file another action with regard to the damages, which could be presented in the courts together with the action processing for simultaneous hearing. As to the enforcement malfeasance by the court resulting in any damages against the parties, state compensation should be applicable.