The Research Of Act Preservation System In Civil Procedure

The main role of a civil action is through the litigation to resolve disputes and protect the civil rights.However, the civil action through the afterwards relief to protect the interests of the litigants to resolvedisputes, but the proceedings was too late to protect the right, it can not to relieve in timely. For example, inthe ownership of houses disputes, if the real owners want to protect their rights through the national force,he need to get the judgment of the court, but in the long time of the proceedings, illegal possession of theperson may destroy the house, in the result, the real owners will be can not realize their rights. There aremany cases in judicial practice, the plaintiffs win in the proceedings and get the judgment, but the contentof the judgment may be difficult to achieve. In order to avoid this situation, and protect the rights of theparties timely and effective, most countries provide the act preservation system and the propertypreservation system to realize justice.The act preservation and the property preservation were together constitute the complete preservationsystem in the Code of Civil Procedure, but our Civil Procedure Law and the law of act preservation, whichis a defect of the preservation system of our Code of Civil, this is the legislative loopholes of the CivilProcedure Law. In judicial practice, many cases are not applicable to use the preservation of property, andthere is no suitable preservation system to give relief to the legitimate rights and interests of the parties intimely, resulting from undue harm or cause damage results increase.In Judicial practice, more and more cases need act preservation and only use the property preservationto deal these case can not satisfy with the protection of the rights obviously. In order to mitigate the judicialconflicts, some areas of our laws provide the act preservation system. Now, China’s admiralty proceedingsand intellectual property litigation has been the system of admiralty injunction and preliminary injunctionsystem, these provisions are the laws about act preservation. However, these acts of nature preservation lawonly applies to the special area, and not used in all types of civil cases in widely. This method can only bea temporary relief the conflict in the legislative and judicial practice, can not solve the problem completely.The act preservation system begin in Roman times, then the provisions of the preservation systemwere similar with act preservation at the present day-writ of prohibition. Act preservation of institutionalwere development in a quite mature level in some foreign countries at the present day, There hasInterlocutory Injunction in common law countries, the civil law countries according to their ownlegislative system to establish preliminary injunction against, whether interlocutory injunction or preliminary injunction against, although the name were different, but in essentially they were actpreservation, they could avoid and reduce the loss of the parties in order to ensure the future of a finaljudgment implementation in timely and effective. The Act Protection System are playing an irreplaceablerole in the civil legislation of most countries in the world.With the development of society, new types of complex cases more and more, to deal with these cases,the law does not provide the applicable rule. In recent years, the legal concept of the people graduallyupgrade, people gradually became aware of the importance of legal protection of the rights has graduallyrealized that the legal protection of the rights not only need protection afterwards, also need to advanceprevention. In order to protect the interests of the parties in timely and effective, eliminate the negativeaffect of the litigation lag, and realize procedural justice and substantive justice, the act preservation systemhas become an urgent need in China’s civil action. To meet this need, first of all we must better understandthe theory of the act preservation, and learn from foreign advanced legislative experience on the actpreservation, and combined with the problems in our legal system to set up our national act preservationsystem.In my article, I introduced the concept of act preservation of the scholars idea, based on the understoodof the act preservation on myself advanced the concept of reasonable act preservation.I introduced the characteristics and the nature of the act preservation system, and introduced thedifferent between the act preservation and the property preservation and the prior execution.Thenintroduced the act preservation system of preliminary injunction against in civil law and the InterlocutoryInjunction in common law countries, select the represent countries and regions of the Two Legal Systems tointroduced and analyzed, the conclusion is we must learn the foreign advanced experience to build the actpreservation system of Civil Litigation.In the theoretical research, the article not only described the value of the act preservation system, butalso illustrates the difference and the contact between act preservation and other related systems. To set upthe act preservation system, we must learn the foreign advanced rules, combined with the preservation ofthe status of the system of civil litigation practice in China, And finally concluded that we must set up theact preservation system in parallel with the property preservation in China’s civil action.