Anlyse On The Case Of Haomai Co. Sue The Eighth CC Co. The Damage Compensation Of Proceeding Property Preservation

Proceeding Property Preservation means when the case is on the docket,theaccuser applies the court for sealing\detaining or freezing the respondent’s property orthe controversial subject to restrict or temporarily deprive his disposition of theproperty or subject to make sure that the effective judgment can be realized,or to avertinterests loss.Damage Compensation of Proceeding Property Preservation imply thatthe accuser must compensate the damage of the respondent if he makes a wrongfulapplication.The principle provision “A wrongful application means compensating forthe loss of the respondent” of The Civil Procedure Law of the People’s Republic ofChina and the relevant judicial interpretations is the legal basis of the DamageCompensation of Proceeding Property Preservation.However,the law does not provideclearly what is “a wrongful application”,or what is “the loss of therespondent”.Therefore, the judicial practicers and legal scholars stick to inconsistentviews.Concerning the case of Haomai Co. Sue The Eighth CC Co. the DamageCompensation of Proceeding Property Preservation,both of the parties,the Court ofFirst Instance\Second Instance,the court of retrial and the protest procuratorate holddifferent standpoints:The Eighth CC Co.’s application is right or wrong; WhetherHaomai Co. suffering damage or not;how to ascertain specific loss,can the loaninterest be included in the loss or not;Should The Eighth CC Co. bear all the lossesgenerating during the period of Haomai Co.’s real estate being sealed.After putting forward the idea:to identify the applicant apply ProceedingProperty Preservation right or wrong,we can combine the judgment of the originalcase with the proof burden of this damage compensation case,enumerateing sixsituations:firstly,if the court reject plaintiff’s claim,then the principle offault-presumption be applied.Secondly,if the court support plaintiff’s claim less than30%,then the the principle of fault-presumption be applied,too.The third,if the courtsupport plaintiff’s claim more than70%,then the fault-principle be applied.The fourth,if the court support plaintiff’s claim more than30%,but less than70%,then theprinciple of obviously preponderance of the evidence be applied.Fifthly,the applicant could have won,but because he was in violation of the proceduralprovisions.Therefore,his claim is failure to get support from the court.At this time,wejudge the applicant’s subject attitude on the basis if he is with or without person whois familiar with the law.The sixth,if the applicant preserve the property of otherswhom is not involved in the case,or other property which cannot bepreserved.Then,the the principle of fault-presumption be applied.Use the above thoutsto analyze the case,and then draw a conculsion The Eighth CC Co. made a wrongfulappliction.Combining with the actual situation of the market economy in our country at thisstage,separate the defendant’s loss into nine categories:the loss of original things,theloss produced since the defendant take measures to reduce the loss or prevent furtherloss,the loss of profit because the defendant’s regular production be affected,defaultloss on account of breaking a validatory contract with others,featured loss due tofeatured thigs being preserved,loss from falling price,interest loss,storage costs,theloss of business reputation or corporate image. Meanwhile,conceive a set of steps tojudge whether the debtor has suffered losses and determine the specific amount ofloss:Step one,inspect if the defendant prove that he has been suffered losses one ormore of the above-mentioned.Step two,estimate the specific loss is legal or illegalaccording to normentheorie.Step three,decide whether there exist causality betweenthe loss and the applicant’s wrongful application.Finally,determine the specificamount of the defendant’s loss.To the case,the request for damages of Haomai Co.cuold not be supported since Haomai Co. did not prove its damages subsistent.