Research On The System Of Property Preservation Guaranty In Civil Action

The system of property preservation guaranty is a system that a party provides certain credit or property, accepted by the people’s court as the guarantee, to protect the civil right of claim or to achieve opposite party claims from property preservation improper in the property preservation program. With the rapid development of Chinese economy and civil disputes increasing day by day, as an important security system in civil action, property preservation guaranty is playing an increasingly important role in modern judicial practice. However, China’s current civil procedure law and relevant judicial interpretations of the system still remain in the simple and scattered, lacking of legislation has led to the judicial practice of chaos. In order to guarantee function of property preservation obtain the real play, this paper focuses on the main line, namely the guaranty settings, review, amount, and the validity of a guarantee provided by the applicant and have a discussion on civil litigation in Chinese property preservation guaranty, in order to help the smooth progress of the civil litigation and the implementation of the parties’legitimate rights and interests.The overall structure and the main content of this paper are as follows:The first part introduces the basic theory of property preservation guaranty system as the base. To understand the property preservation guaranty, we must first understand what is the preservation of property, understand the meaning of property preservation guaranty, and comparise the difference between property preservation guaranty and other relevant concepts.The second part introduces about the property preservation guaranty law of continental law system and Anglo American law. The author combs regulations and using in Germany, Japan, the area of our country Taiwan and USA on property preservation guaranty settings, review, amount, method, the validity of a guarantee provided by the applicant, and extracts the relevant regulations that our country can learn from and use for reference.The third part analyzes present situation of property preservation guaranty system in our country and reviews its deficiencies from two plate legislation and practice. At the legislative level, Chinese Civil Procedure Law on the system pays too much attention to the guarantee of the preservation of property security, lacks of specific reviewing standards, almost no provisions of the guarantee way, and has many questions on whether directly applicable Civil substantive law, there are many difficulties to implement the the relevant judicial interpretations about the provisions of the amount of guarantee in practice, it also seems questionable that the respondent provides security to lift the custody of property. In practice, some local courts make the alternative provisions in civil procedure law and relevant judicial interpretations for the property preservation guaranty, the author analyses reasonable provisions of Beijing, Shanghai and Jiangsu Courts, hoping to further perfect our civil property preservation guaranty to bring some inspiration.The fourth part puts forward some specific improving ideas on Chinese property preservation guaranty system. Break too stringent requirements on the property preservation guaranty system settings, to provide security for the principle, at the same time, as exceptions, the applicant can be exempted from the security when they meet certain conditions. Make the principles and content of reviewing property preservation guaranty clear, and regularize property preservation guaranty manner. Scientifically determine the property preservation guaranty amount ratio and increase changing the security and additional security requirements. On the problem of validity of a guarantee provided by the applicant, it is the applicant to provide a guarantee conditions, whether to terminate the guarantee is to distinguish between property preservation measures to make different rules for the property or behavior.