Analysis On The System Of Act Preservation In Civil Procedure

As the regulating system of life in the society, the legal system always appears ordevelops with the special need of the social development, the system of act preservation isalso born in this way. With the social economy of our country speeding up and the judicialreform advancing, the parties’ legal right needs not only the proceedings or ways of disputeresolution like this which can be used as the ultimate protective weapon after the dispute, butalso the remedies to the right which is ruined by the happening or the possible damage iscalled before the case is decided. However, the ways of remedy to the litigants’ substantiveright before the dispute is ruled has not been ensured effectively in our country so far. In orderto protect these right effectively and sufficiently, the perfection of the act preservation in civilprocedure law must be done, so that we can endow the parties with necessary weapon toprotect their own right and interest; beside this, it is demanded to set the certain conditions ofapplying for act preservation for the litigants. In this way, the adequate protection of theparties’ substantive and procedural rights can be realized. Based on the above, the justice andefficiency of law and proceeding procedure will be highlighted; the procedural andsubstantive justice can be realized to the greatest extent. It is critical and of great meaningsand value to the resolution of disputes as well as the protection of the stability in socialrelationships in our society. Also, it is a necessary measure for our country to meet the needsof the development in our society and catch up with the trend of the internationalization oflegislative system.This article takes the title “Analysis on the System of Act Preservation in CivilProcedure” as its topic. First of all, the author starts with the definition of the concept of actpreservation in civil procedure. And then, the jurisprudential basis and the system value arefurther researched.After this, by the inspection and consultation to the foreign system as wellas taking into consideration the current legislative rules and the state of the running of thissystem, the author puts forward the suggestion on how to systematically establish the actpreservation system in Civil Procedure Law in China. Apart from this, the several possibleproblems that may be encountered with in the process of the system establishment are alsoanalyzed and introduced. In all, the author takes the view that the justice and high-efficientsystem of act preservation in civil procedure should be established in the basis of proceduraltimeliness, which focuses on the protection of the applicants’ legal right and interest, meanwhile, associated with the protection of the respondents’ procedural right.Apart from the preface and conclusion, this article is composed of five parts, which aremore than30000words in all.Section1: The summarization of act preservation in civil procedure. At first, the authorcertificates the meaning of act preservation and compares the difference among the relativeconcepts. Then, in order to clarify the value and goal of the system, the historical promotionand birth background of act preservation are also introduced.Section2: The common jurisprudential spirit of act preservation. This part focuses on thejurisprudential basis and the value of the system. At the same time, the legislative demand tothis system in our country and the recent legislative situation are manifested. On this basis, itseems that the calling and need of the perfection of act preservation system are more urgent aswell as important because of the deep value and the practical demand rested on the systemitself.Section3: The comparison among the related legislation of the typical countries in thetwo legal systems. This chapter emphasizes the special points and advantages of the actpreservation system in Germany, Japan, Russia, the UK and the USA. Moreover, it introducesand discusses the content of the corresponding systems, such as einstwelivergung andinterlocutory injunction in the countries above. Except for this, the merits of this system ineach country are analyzed and extracted.Section4: The present state and dilemma in the legislation of act preservation in ourcountry. This section inspects the faultiness of this system and the systematic and practicaldifficulty straits by this. At the same time, the lawyers’ modification of the Civil ProceduralLaw is discussed. The dilemma does not only rest on the insufficiency in specific proceduralregulations, but also lies on the thoughts behind the system lagging behind and being partial.In the prospective of the current legislation, there are several problems like this: the scope ofthe cases that the system can be adapted is too narrow; the current regulation is too abstract touse; the balance between the interests of the two parties is not on the right point; the ways ofremedies to wrong decision are too poor and not sound. The purpose of this part is to find theproblems and demerits, so that it can make good preparation and solid basis for the formalestablishment of act preservation system.Section5: The conception and suggestion on the establishment of act preservation in ourcountry. This part discusses in detail the specific ideas of the setting of this preservation proceeding, the advice can be seen from the beginning of the proceedings to the enforcing ofthe decision. In addition, the author analyzes the coordination and perfection of thecorresponding systems in the establishing process. These are studied to avoid the unnecessaryproblems as many as possible in the establishing process, so that the trying to be scientific andrational can be chased. In this way, the establishment of this system can more efficientlysatisfy the demand of society and judiciary practice, protecting the parties’ legal right andinterest as well as enhancing and ensuring the stable development of the economy and societyin our country.