The Study On Court Examination Of Act Peservation Of Civil Lawsuit In China

Civil lawsuit is the kind of action performed in the process of hearing and solving the case by the court, parties and litigant participants, and the means of lawsuit has been employed to settle the disputes and protect the legal civil rights and interests of the rights-holder. Though it has the characteristics of strict legality, enforce-ability and finality and so on, civil lawsuit which pertains to the afterwards relief measure often lags. In order to make up the weakness of lagging, enable the parties to timely achieve rights relief, and avoid the hard enforcement and irreparable damages, Act Preservation has been prescribed in succession in the countries and areas no matter they are belong to the continental law system or common law system, in spite of the difference in names, such as, the interlocutory injunction in the United Kingdom and the United States, but the conservatory measures in litigation in German, Japan and the Taiwan area of China. Despite the Temporary Restraining Order and Protective Order (which are similar to Act Preservation) in the Intellectual Property Law and Maritime Law, Act Preservation has gone a long way and finally got the confirmation by Civil Procedure Law in 2012 although it has existed in the Civil Procedure Law of China for many years. The confirmation of Act Preservation, to some extent, fills the gaps and displays great significance.Nevertheless, it is found that the prescriptions in Act Preservation by the new Civil Procedure Law are more of abstractness than concreteness and also are relatively simple by the legal opinions and advice on Civil Procedure Law in 2014, which needs to be greatly improved. In the context of China’s Act Preservation, analyses in legislation, legislative development and practical plight and so forth have been conducted and thorough suggestions have been put forward by this thesis from the angle of the court examination of Act Preservation in China and the reference of the foreign ones. The thesis is divided into five parts:the first part is the theoretical introduction of Act Preservation and its court examination in Civil Procedure Law in China, that is, the explanations from connotative definition and logical starting point; the second part has the legislative exploration for Act Preservation and its court examination in Civil Procedure Law in China and investigates the problems in the court examination of the system; the third part touches the institution problem in the court examination of Act Preservation and then narrates in the view of improving current situation; the fourth part discusses the content of China’s court examination in Act Preservation from the aspects of the parties’ qualification, the possibility of winning over, the necessity of preserving and the measurement and guarantee of the interest and the like; the fifth part, in reference to the two main court examination manners in the world, probes into the construction and improvement of China’s court act preservation examination manner according to the national conditions so as to guard the procedure justice.This thesis is meant to provide the beneficial references for Act Preservation and court examination in China through the thorough and painstaking analyses of them.