A Study On Act Preservation System In Civil Litigation

Act preservation system was taking into form in the legislation of Rome ear,which was called "Intedicta prohibitoria".Nowadays,the civil preservation has been a kind of usual practice of legislation in most of those modern counties in the world.Though the name and specific stipulations are quite different in various countries,all of these countries share the same intention,which is to guarantee the compulsive execution of the judgment and reduce the lost that involving parties has suffered. Conservatory measures in continental law system and interlocutory iunction in the common law are two typical forms of act preservation.From the perspective of different object,the civil preservation can be divided into two parts,which are the property preservation and the act preservation.Nevertheless,China's civil procedural law only covers the scope of property preservation,and the amendment of new civil procedural law has not concretely stipulated the act preservation.In the area of intellectual property,maritime litigation and preliminary execution,we have set down some rules on act preservation,but many people cannot get enough remedy for their suffering due to the limited applicable stage,scope and conditions in the effective rules on act preservation.Therefore,we have achieved a common agreement that it is a necessity for China to establish our own act preservation system in the civil procedural law system.The dissertation is consisted of four chapters:The first chapter is the overview of the civil preservation,which analyses the definition,characters,standard of sorting different types of preservation.After the analyzing,the dissertation gives its own definition of act preservation.The second chapter is to introduce the history of the act preservation. The author compares and analyzes the related mechanism in both the continental legal tradition and Anglo-American legal tradition,and concludes that civil preservation system is comprised of the property preservation and act preservation and we can leam a lot from the Conservatory measures and interlocutory iunction.The third chapter is the analysis of the status quo of the act preservation system in China.Comparing the differences among injunction on further infringement,preliminary execution and maritime writ,the author tells out the problems we have in China and explains the necessity to establish the act preservation system in the area of civil litigation in order to protect parties' rights and interests equally.Chapter four is the thought of constructing our nation's act preservation system.The dissertation addresses the legal foundation in theory and practice,both in civil law and civil procedural law,of the setting up China's act preservation system.For the procedural design,the author specifies the applicable conditions,initiation of the proceeding,hypothec, judicial review,remedy as well as the execution of the act preservation system,which tries to perfect our country's act preservation according to civil procedure's purpose,principles and values.