The Tort Liability Of Wrongfully Made Application Of Property Preservation

The Property preservation as a temporary relief measures, through a certain property control by the applicant, guarantee the verdicts implementation or reduce the parties other damage, has the characteristic of protection the interests of the applicant. At the same time, in order to safeguard the interests of the applicant, the property preservation system requires the applicant must provide guarantee before the application for property preservation. But, even so, in the judicial practice for preservation of property against the respondent error to the interests of the case to increase gradually, and the preservation of property, the error caused by the right of claim for damage compensation how effective protection, judicial practice has not formed a consensus. But the relevant legislation in our country only have a principle provisions in "Civil Procedure Law", but "application error", "the scope of compensation" and other compensation responsibility elements of the specific meaning are not exist, so that in the practice of "the applicant how to bear the liability for damages", "what is the foundation of the damage compensation responsibility", "whether the court can be the subject of liability" was so confused. This article starts from the angle of tort liability law, combined with the relevant provisions of the Civil Procedure Law of tort, preservation of property and civil wrong resulting liability is discussed, in order to find solutions to puzzles way in the scope of regulation of substantive law in tort liability law. Besides preface and conclusion, the paper is divided into five parts.In the first part,it is the start for property preservation error problem. The author through two typical cases, summed up the case of the dispute, combined with related law basis and theory are compared and analyzed. It summarizes the main problems of the preservation of civil property mistake infringement behavior in practice, and put forward in order to balance the interests of preservation system in combination with the application of our tort liability law solution as the starting point of the problem.In the second part, it is the basic theory of related concepts. 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, it is the analysis of the tort liability of property preservation mistake. This part firstly analyzed the compensation claim basis for property preservation error. And then combined the practice with the theory of property preservation error, based on the connotation of different principle of imputation in tort liability law of our country and their respective applicable orientation to the value of the protection of their rights, and interests of parties concerned. The error of property preservation in different case and compensation liability imputation principle to judge respectively, and discussed the constitutive elements of tort liability. Finally, based on several specific error property preservation in practice situation, analyzed the standard and the way of the recognition of the subjective fault.In the fourth part, it is statement of the tort liability of property preservation mistake. The author start the practical and theoretica statement from the liability subject of property preservation errors of tort, the way to bear and the scope of damage of compensation security error tort consequences.In the fifth part, it is the reference Suggestions for property preservation error in tort liability legislation. The author start from the problems existing in the practice, pointed the deficiency of the legislation in our country. Combined with the problem existing in legislation, in order to prevent security tort case occurrence and protect the interests of the applicant better.Then put regulating reference suggestions about perfection of the property preservation error in tort liability legislation.