Study On Act Preservation In Civil Procedure

The civil securing judgment procedure is one of the indispensable during the whole civil procedure, with very important value and significance of existing for making up the litigation lagged, and it plays a unique function. Reviewing the provisions about civil securing judgment procedure in different countries, although there are different names about this system because of the different background and value of different country, the procedure has already become an important way to solve the economic dispute of civil cases objectively. However, that in China is limited to the preservation of property and the enforcement in advance, lacking of the act preservation, especially the act preservation before sue, which is far to meet the needs of the increasingly complicated civil and commercial activities. Although there are some regulations about act preservation in the maritime affairs and the intelligent property right litigation, they are applicable to the particular litigation with applying the limited scope and lacking of the systematic provisions.The imperfection of legislation will bring the confusion in judicatory practice and so many legal rights of parties can not be protected promptly and effectively, even appear the situation that distort to apply the property preservation to resolve dispute. With the development of society and improvement of people's right consciousness, the promptness and benefit of judicatory are the people's expectation and people also are aware of the superiority of guarding against something before the event. Because usually relief after the event will lead to the higher judicial cost, and"win in lawsuit" does not mean the rights can be definitely guaranteed. So, for preventing from the erosion to the legal rights, and for carrying out smoothly solving of the disputes and controversy and the process justices, the earnest self-criticism and perfection of the act preservation system is already urgent. Hence, practice and the ages call an arrival of act preservation system, which is a topic of realistic meaning not only to the legislation but also to the judicatory fulfillment.This thesis consists of three parts: introduction, text and final chapter. And the text is made up of three chapters. The introduction mainly explains the reason and meaning of studying this proposition. The text begins with the concept of act preservation and then makes the analysis of characteristics, property, and the value, trying to figure out the identity of the act preservation. The following is the comparison and analysis of the relevant systems in different nations. According to this kind of research, the third chapter is focused on the shortages of our relief system based on the analysis of the present situations about the relevant laws and regulations and their practices, and in this chapter mainly points out the suggestions about construction and perfection of the act preservation. Such as: Further clarified the relationship and the coordination between the act preservation and the present relief system;Further explicated the condition of the application in the act preservation procedure;And pay more attention to the guarantee of both parties in the trial relief procedure. That is, legislator should pay great attention to balance the bilateral litigants' interests. We should consider promptness during the preserving procedure and also pay attention to the defendants'due process rights as far as possible. Before making the preserving order, the judges should inform the defendant, organize the oral argument between appellees and appellants, give the appellees opportunities to express his opinions, and establish the appeal system and cancel mechanism of act preservation, etc. Thus, the system of act preservation can make the lawsuit relief display its fairness and rationality maximum, protects rights promptly, solves disputes effectively, make the goals of civil action realizable.In the final chapter summarize the whole thesis briefly and point out what should be studied further.This thesis is completed by dint of theory achievement concerned. In fact, act preservation is a proposition full of theory and fulfillment. Without sufficient accumulation of theory knowledge and deep investigation, the thesis seems immature and vague. I know that to some extent my intelligence and ability are insufficient, which may make the thesis have some gaps and omissions ineluctability. I would be grateful if professors make comments and give me some advice.