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Research On Act Preservation Of Civil Action

Posted on:2008-04-25Degree:MasterType:Thesis
Country:ChinaCandidate:L L DuanFull Text:PDF
GTID:2166360218461141Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The system of civil save from damage is a widely used systematic subroutine which is set up to safeguard the execution of judgment. It is designed to maintain the execution of judgments and orders and to protect the lawful rights and interests of the parties in time. Take the object which preserved as the standard, the system may be divided into property preservation and act preservation. The entire civil preservation system consists of property preservation and act preservation in many countries and regions. The so-called act preservation refers to the preserving procedure. During the procedure, according to the applicant's application, the judge will make a preserving order which order the opposite party to act or omit so as to ensure future execution of the verdict as well as stop the infringement. The characters of preservation procedure are urgent, simple, temporary, auxiliary to ordinary procedure. These characteristics have determined its unique values: it can insure future execution of the verdict, solve the dispute completely, protect both parties' legitimate rights and interests effectively, meet the parties'demand that lawsuit may relieve the rights in time, and then contribute to establishing the authority of justice. 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. There are relevant regulations with different appellations about act preservation in the two legal systems. Einstwelivergung(conservatory measures in litigation) of the continental law system including act preservation. A corresponding one in the anglo-american law system is interlocutory injunction which originated from equitable law. Though the names are different of the two legal families, the systems take the same role to ensure future execution of the verdict, protect obligees' rights and interests in time.We can learn some ripe methods from them. The current civil procedure law does not have relevant regulations about act preservation, so the system of conservatory measures in litigation of our country has structural defects. 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. China's legislation should consider bring action into line with the system of civil save from damage, in order to remedy the deficiencies of property save from damage. When the scholars discussed the revision of the civil procedure law, they mostly agreed to the proposal that we should set up act preservation in the new code. 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 how to define the content of preservation of act, and how to establish the preservation of act system. So by reference to the civil preservation system of foreign countries and Tai-wan regions of our country, the writer wants to make this thesis extend from the current scattered regulations in the maritime procedure law, patent law,trademark law and copyright law, further into the field of ordinary civil action, and bring act into the scope of the preservation, and then establish a system for act preservation of civil litigation in our country. The act preservation procedure coordinates with the property preservation, as the effective method of preventing infringement, meets litigant's different needs; links up with the usual lawsuit relief, provides the different relief for the litigants in the different lawsuit stages. Thus, it makes the lawsuit relief display its fairness and rationality maximum, protects rights promptly, solves disputes effectivly, make the goals of civil action realiable.
Keywords/Search Tags:civil action, act preservation, system construction
PDF Full Text Request
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