On The Republic Of Civil Preservation System

Law of thought modern society's, already by the traditionalafterwards damage compensate sanction relief method, entered byprevents in anticipation harms and realizes the right protective measures.In which civil procedure law related civil preserves the procedure thestipulation is this idea manifesting. Civil preserves mainly is refersdefinite in the decision also not before, the court in order to guaranteethe future execution copy clerk's smooth execution, or in order to avoidthe harm which cannot be recalled, the goal is before guaranteedcreditor's legitimate rights and interests, in carry out the copy clerkbecomes effective, takes the certainly compulsory measure theprocedure.In and civil carries out in the law aider the various countries' civilprocedure law related to preserve the system and the procedurestipulation carries on combs the comparison, may see, because althoughor stems from the legal tradition influence the legislation technologyconsideration, the different country civil preserves the system to bedifferent, its name also unique, but preserves creditor's benefit, enablesthe decision effectively to carry out is the various countries all universalmatter of concern. Looked from the various countries' legislation and thejudicial practice that, civil preserved the procedure on objectivelyalready to become one of solution civil economic dispute importantways, the various countries to the legislation which civil preserved havegiven the full value.In history. Republic of China time civil procedure law formulationhas experienced an extremely winding process, has successivelyexperienced several main formulations and the revision. At that time thesociety was at various aspects factor indefinite condition, thus alsocaused the civil procedure law to have very many imperfect places in theconcrete practice process, but some stipulations was worth us in thelegislation stratification plane and the practice stratification plane profiting from truly. In through related civil preserves the case toRepublic of China Time Chongqing Court of appeal the file to carry onin the consult and the analysis summary, may see Republic of Chinatime civil to preserve the system mainly to divide into the provisionalseizure and the vacation punishment, one will be take preserves thefuture to decide enforces civil preserves the system as the goal. This isin the primary meaning civil preserves the procedure; Two, is the losswhich the stop violation avoids being unable to make up preserves thesystem.Arrest mainly refers to "Creditor on money request or easilyrequest for money request, because will have in the future cannotenforce or difficult to carry out the risk of really, will want to preserveenforces, will allow the creditor by the court to apply for the behaviortemporariness to detain measure." Also is called the property to preserve,Its main characteristic is the money which must have preserves enforcesrequested or requested easily for the money, must have the necessitywhich preserves enforces, namely will have cannot enforce in the futureor really difficult to carry out the risk of, the creditor must provide theguarantee, will be able to guarantee the provisional seizure theimplementation, the debtor might also provide the counter-guarantee,proposed the rescission vacation execution application, could only be tothe debtor (by applicant) the money or the suitable cost property willcarry on detains.Einstweligeverfugung mainly is refers to "the creditor on themoney outside the request, because of the request sign the presentsituation change, will have in the future can enforce or difficult to carryout the risk of really, will want to preserve enforces, will allow thecreditor by the court to apply for punishment measure the behaviortemporariness " also is called the behavior to preserve. Its maincharacteristic includes: Must have the money outside to request therequest either has the dispute legal relationship to have the continuity tohave to have preserves enforces or decides the momentary state the necessity, usually divides into about the matter in dispute vacationpunishment and decides the momentary state the vacation punishment.May see through the analysis, Republic of China time arrest,einstweligeverfugung, is for provide relief's the national right rapidlythe important system. The provisional seizure is take the propertydispute as the premise, is the property preserves; the vacationpunishment is take the property outside dispute as the foundation, is thebehavior preserves. And according to the overseas theorists' generalviewpoint, the behavior preserves is preserves with the propertycorresponds the isotopic step concept, both constitute the integrity topreserve the system together. No matter in the theory aspect, or in thejudicial practice process, is protecting the creditor benefit aspect civil topreserve the system with now our country to compare is quite perfect.Summarizes stipulation which in our country civil procedure lawrelated preserves, may discover our country gives carries out the systemand the property preserves the system is to first obligor's in legalprocedure two main temporary relief method. Since the long time, theyhave been playing the vital role. Through civil preserves the system tothese two main temporary relief method and Republic of China time tocarry on the comparison, may see our country currently civil to preservecivil with Republic of China time preserves basically the provisionalseizure stipulation same, the final outcome all is through carries on tothe property preserves protects the concerned litigant's legitimate rightsand interests; But, in the trial practice, we also discovered the existenceis unable massively the situation which utilizes these two systems tocome to process. In other words, civil preserves the procedure tolegislate in our country with theoretically quite is also weak. Thebehavior preserves in the worldwide scale is not in a new procedural lawconcept, mainly is refers as the court acts according to the litigant or theformidable sponsor's application, but for avoids the occurrence whichloses or further expands one kind of civil precautionary measure whichadopts to outside the related property related behavior, Republic of China time preserved the system to make the detailed stipulationregarding this. How in to processes the litigant to propose thenon-property preserves the request (mainly is behavior preserves) theaspect, since long ago, had been established the civil procedure lawdomain after new China, specially in the current our country civilprocedure law the corresponding stipulation, has not lacked theunification the behavior to preserve the standard.; This kind preservesthe loophole in the behavior which the aspect exists to cause to beunable inevitably the effective protection creditor's legitimate rights andinterests, the cause very many obligors' legitimate rights and interestscannot obtain the prompt protection. Therefore, whether does our civilprocedure law need with how to establish this system is precisely thisarticle ponder is at, this also is the practical realm faces urgently awaitsbeing solved the question.The author attempts through civil to preserve the procedure to theRepublic of China time civil procedure law in the historical evolutionand the judicial practice inspection, about the concrete case which civilpreserves as begins the spot take Republic of China time Chongqingplace, analyzes the Republic of China time from the system stratificationplane to preserve the system, how civil preserves in the system to theRepublic of China time to carry on the protection tool body analysis andthe summary to creditor's legitimate rights and interests, and withcurrent preserves the system to carry on the comparison, learns fromhistory, to consummates our country currently to preserve the system toprovide the reasonable suggestion, expected has a benefit to ourcountry's civil procedure law revision.