Comparative Study On Act Preservation System And Legislative Construction In China

The system of preservation is designed to maintain the execution of judgments and orders and to protect the lawful rights and interests of the parties from unrecoverable damages caused by continuous tort. Take the object which preserved as the standard, the system may be divided into property preservation and act preservation. Civil preservation system exists in the laws of different countries more or less, such as conservatory measures in continental law system and interlocutory junction in the common law. In the revision of the civil procedural law of our country, the property preservation system is still stipulated. For this system is only applicable to property not to acts, such a loophole in legislation results in a great deal of fact that the parties cannot be aided by this system in practices. The legislative bodies and Supreme People's Court of our country have introduced the current "maritime mandatory order" and"interim injunction before the institution of an action" in maritime litigation and intellectual property litigation. 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. However, they mentioned little about how to build up it. So this paper compares and analyzes act preservation system and procedural remedy ways in current civil procedure, and then combining the ideas of civil procedure law revision experts, who suggest perfecting and reforming property preservation system and act preservation system, boldly puts forward the ideas of constructing act preservation system.Besides introduction and conclusion, this article is divided into shree sections. Section one introduces the basic theories on civil act preservation system. This part gives the definition of act preservation and describes the nature of it, value analysis and the historical course. Section two discusses the act preservation system by comparing. In this part, Conservatory measures in continental law system and interlocutory junction in the common law, interim measures in WTO agreement. Section three discusses the legislative construction of act preservation system in our country. First the main content of this part is to compare some procedure remedy ways in the civil action law, such as property conservation, prejudgment execution and enforcement, with the act preservation system. And then concludes the meaning of setting up act preservation system in our country. The second this part explains the ideas in the experts'suggestion manuscripts of civil procedure law revision, and brings up detailed suggestion on legislative construction.In theory, this paper 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 act preservation system itself. In system, it not only uses foreign relative regulations for reference, but also bases on the current situation of civil preservation system of our country. Finally it tries to form a dual systematic frame for our civil preservation system that lays equal stress on property preservation and act preservation.