Research On Compensation For Wrongful Preservation Application

The lawsuit relief has the characteristics of hysteresis, while the preservation system has the function of guaranteeing the execution of the judgment and reducing the lost that involving parties has suffered, therefore,it has been applied extensively., followed by increased preservation application, the compensation cases caused by wrongful preservation application also increases. The provision on the issue of compensation case is not clear, the attributing principle, scope of compensation are not mentioned. In juridical practice totally different court decision is awarded for same case. Therefore, it is necessary to do further research. Besides preface and conclusion, the paper is divided into five parts.In the first part, the author chose two typical cases, and summarized the focus of the controversy.Then analyzed the scholars’different perspectives and proposed the method of resolution--find the balance of interests in preservation system and the applicable standards of the attributing principle in tort law.In the second part, the author described the implications, features and other aspects of the preservation system to find the balance of interests in preservation system.In the third part, based on the above analysis, and combined values of protection of rights and interests of both parties by the use of different attributing principle in tort law. The author made judgment that the no-fault liability should be applied to the compensation cases, and discussed the constitutive elements of tort liability.In the fourth part, the author analyzed the compensation cases’trial procedures from the aspects of jurisdiction, participants in proceedings, the distribution of burden of proof, scope of compensation and bear, limitation of actions.In the fifth part, in order to prevent occurrence of compensation case, and give more protection to the respondent, the author give advices on improve the application system.