Research On The System Of Omission Act Preservation In Civil Procedure

With the emergence in large numbers of environmental hazards litigation、family litigation、labor dispute litigation and other modern type disputes. The system of act preservation is not only to guarantee the implementation of the judgment in the future, but also to prevent irreparable damage to the parties and to provide temporary relief. However,the system of act preservation is still mixed together with the property preservation system in the "Civil Procedure Law",which is difficult to meet the increasingly diverse parties preservation request, and severely hampered the security system function. Therefore, it is necessary to deeply review the system of omission act preservation, analyze the legislative design and operation dilemma, explore measures to improve, in order to better realize the value of the system.Apart from introduction and conclusion, this paper is divided into four parts.Part I: The summarization of omission act preservation.The system of omission act preservation is the compulsory measures that the court made to protect the interested parties or the lawful rights of the parties, in before litigation or proceedings(including an arbitration), according to the application or made according to the power, ban the applicant to make certain behavior or endure the applicant to make certain behavior. The system of omission act preservation originated in Roman law prohibits writ system.The Anglo American law system developed into the injunction system,while the civil law system developed into omission einstwelivergung.The distinction between debt and not as a debt in Substantive law,and the differences of the act and omission act in content, nature and execution method in the procedural law are the basis of the sepration of inherent logic of two kinds of act preservation.Part II: The investigation of omission act preservation systems in extraterritorial two law system, The system of omission act preservation.which reflects injunction system in Anglo American law system,Through the ban on the provisions of the applicable conditions and procedures,it prevents some behavior from continuing to expand or losses. In civil law system, the performance is omission einstwelivergung. German civil procedure law firstly ruled the einstwelivergung of substantial requirements and process requirements.and distinguished trail procedure from execution procedure.Japan and Taiwan area of our country in reference to German law, each have added, forming a unique omission einstwelivergung.Part III: The status quo of omission act preservation system in our country. Before the revision of the "Civil Procedure Law", China has explored in the special procedural and substantive law.such as stopping the infringing intellectual property litigation before litigation system, the maritime injunction system and the habeas corpus in family litigation. The system of omission act preservation in special law reflected the system clutter,various name,lacking of unified standards of legislation.Moreover, China’s civil procedure law has also some shortcomings about the system of omission act preservation, Mainly displays in the vague of preservation suitable conditions the simplicity of trial method,the absence of execution legislation, the singularity of relief measures. These deficiencies not only severely hamperes the function of act preservation system, also is unable to coordinate the conflicts between the special law and Civil Procedure Law.Part IV: The exploration of omission act preservation system in our country. The omission act preservation is initiated by the interested parties or the parties’ request for omission act preservation,This is a natural intrinsic logic relationship between the omission act preservation the request for it.making a necessary classification for the omission act preservation requires,to promote the typology of the omission act preservation and to deal with different types of omission act preservation. On this basis. In view of the different types of omission act preservation to take different review conditions, combine the unilateral preservation and preservation for trial to hybrid mode, strengthen the implementation of omission act preservation,and expand the relief way of act preservation. Which leads to variety of litigation mechanism connect each other to promote the purposes of omission act preservation system maximizing.