Researches On The Property Preservation System Of Commerciai Arbitration In China

With the rapid development of economy, the trade exchanges become more andmore frequent. So disputes inevitably happen. Arbitration, as an alternative solution,has been applied to solve the general commercial disputes, and the portion of propertypreservation system as an integral part of the arbitration legal system, shows itsimportance. The property preservation can effectively avoid property loss, therespondent impairment property behavior causes the arbitration award can not beexecuted. The property preservation help the arbitration procedure to smoothly. Sowe fail to set the property preservation system efficiently, it will hinder the twoparties who choose the arbitration to solve their disputes. Before the Civil ProceduralLaw of the Peoples Republic of China was revised, the law in our China onlyprovides for arbitration, which brings about a series of problems in practice. It is notconducive to the protection of the rights for the legitimate. Thus, the newly revisedCivil Procedural Law of the Peoples Republic of China increased pre-arbitralproperty preservation system, making our property preservation system better andbetter. But from a practical point of view, the property preservation system is stillblank in many places, and it can not meet the requirements of the arbitration practice.Relative researches on the property preservation system is less than to be needed formany reasons. It is not conducive to the improvement and development of ourarbitration property preservation system. Because of these reasons, this paper mainlyanalyzes the basic theory of the property preservation system, specifically elaboratingthe property preservation, hoping to find out the defects and shortcomings in order toput forward to corresponding suggestions. Hoping through my effort, people can beinterested in this party and pay attention to this party to analyze it.The first part of this paper mainly talks about the basic theories of propertypreservation system according to the law and practice of arbitration. Specifically, thewriter mainly elaborates the concept, characteristics, effectiveness, the applicationconditions and procedures. The concept focuses on the summarizes about the provisions and the scholars’ study. About the characteristics, the writer mainlyfocuses on the analysis from several temporary, urgent and attached attributes; for theeffectiveness, the writer mainly starts from the preservation of the time, and also theeffectiveness to the parties and the court. As for the application conditions andprocedures, the writer mainly analyzes and summaries theoretical analysis based onthe “Arbitration Law”,“The Civil Procedural Law of the Peoples Republic of China”and relevant judicial interpretation. This part aims to sort out the propertypreservation system, making the people enhance the understanding of it, and alsoprepares the property preservation problems and how to solve these problems.The second part mainly describes the defects of our country’s arbitrationproperty preservation system and shortcomings, and put forward some reasonablesuggestions. According to the law of our country, the people’s court monopolizes theright of property preservation, so the arbitration or arbitration committee does nothave this aspect of power, which leads to low efficiency of property preservation, andmistakes of preservation. It not only damages the legitimate interests of the parties,but also does harm to the development of our arbitration. So, the writer thinks that wecan give the right to review the applications for the preservation of the arbitrationtribunal part properly. For one party, it can reduce the preservation mistakes, and alsoimprove the quality of the property preservation. For the other part, it can also reducethe parties who abuse the rights of preservation. It is also conducive for ourarbitration system to be connected with the international practice, and can prepare forthe future expansion of the powers of the arbitration tribunal. According to our law,the jurisdiction of the court of arbitration for preservation of property is the basicpeople’s court. So it is obvious that there are conflicts with the intermediate people’sCourt. So the writer thinks that we can give power to the intermediate people’s courtfor property preservation. As everyone knows, the purpose of property preservation isto guarantee the effective implementation of the future award, the basic people’scourt who is familiar with the preservation of property does not execute thearbitration award, and the intermediate people’s Court of arbitration award is notfamiliar with the property preservation. So it sets up artificial barriers for theenforcement of arbitration award, and obviously it is not conducive to the rapid implementation of the arbitration award. The security system of property preservationin our country is not perfect, either. For example, practice guarantee becomesgradually absolute, the cost of the guarantee is too high. For the issues of security, thelaw of uniform provisions is hard, although it is easy for implementation, but it willalso bring some problems, such as before applying for arbitration, the party mustprovide the guarantee. If the applicant does not have enough money, he is unable toprovide security. But the relationship of rights and obligations are very clear, thelikelihood of the party’s success is great. So if the party must provide security, it isobvious not conducive to the protection of the rights and interests of the party.Therefore, the author believes that, whether the applicant should provide security andthe amount of guarantee, it should be judged by the court according to the specificcircumstances. Only this can provide help the party. The scope of our propertypreservation is too narrow, so the author thinks as long as the property of theapplicant is the execution property, it can become the objects of preservation. Thiscan avoid the legal provisions of the preservation of the object value is too small, andit is unable to guarantee the enforcement of arbitration award of the action. Theproperty preservation in our country is lack of relief program, so it is not conducive tosafeguard the interests of the parties, including the reconsideration procedure beinglack of operation, the third party lack of withdrawal procedure, rescinding theobjection being not perfect. The writer thinks that we can refine the reconsiderationprocedure. For example, laws and regulations should make reconsideration andreview procedures clear, and make sure the decision of reconsideration period,guarantee the revision rights of the party; The third people in the propertypreservation phases of execution should be constructed; To make sure that the thirdpeople can have the procedure right to safeguard their own rights and interests; Set upthe procedures to relieve the property preservation; Increase the removing of thepreservation measures, so as to make the relief of the property preservation can gethelp from the law.Due to the limitation of the writer’s knowledge and ability, and also thecollection of materials is not enough, so inevitably this paper is not good enough inthe style and content hoping get help to improve it.