The First Probe Into The Construction Of Preservation Of Act System

Preservation of act system is a civil preservation system with deep historical source, which can be traced back to Rome law, and is a kind of usual practice of legislation in all modern counties. Conservatory measures in continental law system and interlocutory junction in the common law are two typical forms of preservation of act. But there isn't any prescription on preservation of act in the civil procedural law in effect of our country. With the rapid development of social economy, civil dispute are becoming more and more complicated, which go far beyond the scope of the ability of attachment system. The system limitation leads to more and more contradictions in litigant practice. Under the promotion of the litigant need, the maritime obligatory order and stopping an injurious act before action have been established respectively in the maritime domain and the territory of intellectual property, which are the earliest experiment of preservation of act in our county. At the same time more and more scholars began to pay attention to the subject of preservation of act and put forward many valuable suggestions. The expert's suggestion manuscript provided by The Revision and Perfection of the Code of Civil Procedure subject group, which is established under the lead of Professor Jiangwei, takes preservation of act as an independent system. But there are still lots of disputes in the theory circles of civil litigation on whether preservation of act should be adopted, how to define the content of preservation of act, whether preservation of act has independence and how to establish the preservation of act system. Based on exploring the history of the preservation of act system and the present situation of the civil preservation system of our country, the thesis discusses detailed on the basis of establishing the preservation of act system. The thesis probes into such three aspects as its theoretical basis from civil actionable value, the reformation of procedural remedy ways and the relationship of substantive law and procedural law. Secondly, the thesis inquiries of the practical basis from two aspects of the demand of perfecting the law relief system which are produced with the economic development and the need of promoting the civil litigant system to link with the international law system. Thirdly, the thesis discusses the system independence of preservation of act starting with the relationship between preservation of act with the attachment and implementation in advance. The thesis finally leads to the specific construction of preservation of act system, in theory, not only concerns about the guiding of value, purpose and principle of the whole civil litigation, but also pays attention to the unique characteristics of the preservation of act system itself, in system, the author not only uses foreign relative regulations for reference, but also bases on the current situation of civil preservation system of our country, and expounds specifically such eight aspects as the starts, dominion, conditions of application, methods of trial, guarantee, remedy, cancellation and execution of the procedure of preservation of act.