Acts Of Civil Litigation Preservation Of The Institutional Theory

Along with our country law case type and quantity constantly increasing, perfect civil litigation system, thus to further improve judicial justice and efficiency has become an urgent requirement. As temporary remedy procedure, the preservation system of civil litigation is to realize the ultimate remedy of right and to enhance trial quality. However, our country current civil procedure law actually has not established the act preservation system, which makes the property preservation and advance performance system be unable to meet the litigants' diverse remedy need, and the non-property rights' act pays be also very difficult to obtain damages afterwards with the full realization. Therefore, to improve the present situation, the act preservation of civil theoretical analysis and system construction becomes very essential and important, and has profound significance.In addition to the preface and conclusion, this article is composed of five parts, which is more than 30,000 words totally. As follows:The first part focus on the concept and feature of act preservation. On the whole, this article is creatively according to "civil preservation -litigation preservation - act preservation" in a progressive framework of path analysis, in-depth study in layers, points out the act preservation the direct cause, and should have a set of procedural attribute. Then it narrats the act preservation individuality characteristic.The second part focus on inspection of extraterritorial content of act preservation system. This article elaborates in detail Germany, Japan, Britain and the United States four countries established the act preservation system's specific characteristic and procedure safeguard, points out the difference and draws out China's Construction of act preservation system is the right approach. At the same time, this article also proposes the useful enlightenment that the author recognizes in the summary.The third part focus on comments of the domestic related act preservation system's legislation and judicial present situation. This article embarks from the area of China's civil macro and micro perspectives, uses the data empirical analysis method, and distinguishes the present related system's progress and insufficiency. First, in the macro aspect, although the property preservation and advance performance system are playing the influential role together, widely suitable for the judicial practice, but they have the substantive difference with the act preservation on suitable time, scope, condition, and so on. So they cannot substitute for the act preservation. Next, in the micro aspect, this article points out that, although new "Maritime Litigation Special Procedural Law" and revised "Patent Law", "Trademark Law" and "Copyright Law" all innovates the related act preservation system, but the specific domain's breakthrough cannot cover the flaw. Comparing with the civil procedure law, the legal rank is still not in the identical layer, and it does not have the universality. Finally, the author proposes that the construction of the act preservation should be imperative.The fourth part focus on theory of law analysis of the construction of the act preservation system. This article explains the act preservation system's positive effect as following three aspects: One is to protect the substantive rights of the necessary remedy; Second, is to promote the integrity of the proceedings necessary; Third, is to make up the integration of the rules of civil litigation preservation. The author cites the three construction models to choose, and suggests that transforming the unreasonable place of existing system be practical and feasible. The author also advocates the property preservation, act preservation and advance payment are formed a more comprehensive and perfect civil litigation preservation system. Thus, it can promote the development of the civil right remedy framework, and realize the basic value orientation of civil lawsuit legislation.The fifth part focus on the procedural construction of the act preservation system. This article stresses that act preservation system should be constructed first based on domestic resources and the existing judicial situation, then be learned from the advanced experience of foreign legal system, and be manifested the pursuit to the organic combination of the purpose of preservation and the procedural protection. This specifically reflects, in the act preservation system, procedural construction on the application condition, the initialization mode, the court examination standard, guarantee, execution as well as safeguard and remedy and so on.