Study On The Guarantee Validity Of Property Preservation

Property preservation is an important system in the civil procedure law that ensures the future decision be implemented smoothly and provides advance relief for the parties. It has the function of offsetting insufficient afterwards relief of litigation, and plays an important role in protecting the interests of future judgment creditor. Because of the significant value of property preservation, almost all countries'legislations have set its provisions. But since every country's legislative tradition and actual situation is different, the name and the specific operation of property preservation system is also not the same in different countries'legislations. Different approaches but equally satisfactory results. In foreign legislations, the function of property preservation system that provides beforehand relief for the creditor is implemented by endowing property preservation measures the character of security interest and the validity of enjoying preferred payments. Compared with foreign countries, China's property preservation legislation is weak. Especially in the respect of the guarantee validity of property preservation, our country is still blank and hasn't made any provisions about the guarantee validity of property preservation. And theoretical research in this area is rare too. To improve legislation, theory should go first. In order to make up for the defect in theory, on the basis of the existing research results and foreign advanced legislations, this paper studies the guarantee validity of property preservation and hold the opinion that property preservation system should have the character of security interest and guarantee validity. After the conclusion, it studies the realization of the guarantee validity of property preservation. Based on the introduction of the overseas realization of the guarantee validity of property preservation and the current situation of our country, it offers a proposal of the realization of the guarantee validity of property preservation in China. Due to the guarantee validity of property preservation, there is a problem that how to handle the relationship between property preservation and the guarantee validity of security interest. Especially China's current legislative regulations have provided that property which has been set property preservation shall not again set security interest. It's unfavorable to promote the best use of property. In this case, to discuss the relationship between the two is particularly important. In the end, this page researches the relationship between property preservation and security interest.The whole structure and main content are as follows:As matting, in order to demonstrate the guarantee validity of property preservation better, the first part introduces domestic and foreign situation of property preservation. In domestic system, it firstly introduces the situation that China's legislation has not defined property preservation explicitly and theorists are controversial about what is property preservation. By means of analyzing the purpose and character of property preservation, it defines the concept of property preservation. Secondly, it introduces China's current legislative regulations on property preservation. In the introduction of other countries and regions, due to the differences between various countries and regions and their great influence on the guarantee validity of property preservation, this part selects representative countries and regions of the continental law system and common law system to make detailed description.The second part discusses whether property preservation has guarantee validity. To discuss whether property preservation has guarantee validity, we should make clear what guarantee validity is firstly. This part starts from it and introduces guarantee and guarantee validity firstly. Then it makes a jurisprudential discussion on whether property preservation should have guarantee validity. Thirdly, it analyses whether property preservation have guarantee validity based on its legislation embodiment from the legislation level. Finally, on the basis of ensuring that property preservation has guarantee validity, it discusses the exceptions of the guarantee validity of property preservation.The third part studies the realization of the guarantee validity of property preservation. By researching the realization of the guarantee validity of property preservation in foreign countries, this part introduces and evaluates the legislation of our country. By taking example by the overseas advanced legislation, it gives suggestion on the realization of the guarantee validity of property preservation of our country and the coordination between property preservation and related systems. The fourth part analyzes the relationship between property preservation and the real rights for security. Through the research above, property preservation has guarantee validity. Then there will be a problem that how to handle the relationship between property preservation and real rights for security which has guarantee validity too. This part studies the relationship between the two from jurisprudential aspect, foreign investigation and domestic realistic consideration and so on. Then it makes a conclusion that property preservation and real rights for security is not reactive absolutely. Both of them can coexist. As long as the legislation set clear their sequence, then the problem can be solved satisfactorily. In the end of this part, suggestions are put forward on processing the relationship between the two.