Study On Balancing Of Interests Of Act Preservation In China

As a system to regulate and adjust the social life, the law’s emergence and development is always accompanied by the need of social development, specific to the act preservation system is no exception. With the acceleration of China’s economic development and social development and the promotion of the judicial reform, the legitimate rights and interests of the parties only need relief after the lawsuit, but also a greater need in advance of prevention or relief.Therefore, for the act preservation system in advance of the protection of the result is the subject of rights. Design of the system of act preservation of perfect, should be based on the specific case, comprehensive consideration of various factors, to measure the interests of the parties. In January 1, 2013 with the new "people’s Republic of China Civil Procedure Law" came into force, in our civil procedure act preservation program officially began. Although the time and again come out, but because it is in the civil procedure law overhaul into law under the background of the whole, and the relevant provisions of the existing property preservation, act preservation provisions guiding the stiff simply rubbed into the preservation of property provisions, there are many gaps, need more perfect. Act preservation is to guarantee the execution of the judgment, to avoid the loss of emergence or expansion for the purpose, in order to protect the interests of the applicant. Although the urgency of the case and the act preservation’s purpose determines the behavior preservation is different from the case proceedings which based on the characteristics of the right of disposition and the right to debate in the trial, also determines the behavior preservation with a clear purpose and an emphasis on efficiency. However, if the applicant’s procedural rights are sacrificed to achieve the purpose of system, also it is difficult to achieve the purpose of protection of the rights of the applicant, and it can not achieve the fair and objective result, make the act preservation is difficult to independently in appearance to meet the requirements of due process.The name " act preservation" from the glossary appearance is created by our country, but in fact originated from equity law in England in fifteenth Century. In the study of foreign act preservation system, we can find many mature behavior to preserve the standard system, the development of our country’s act preservation and perfection is very worth learning.Although the names of the act preservation of the two legal systems are not the same, the protection of the focus is different. The two law systems have provided detailed procedures, paying more attention to equal protection of the interests of the parties and the proper procedure. Compared with foreign mature legislation, due to lack of construction of act preservations laws in our country at the present stage, so that the interests of all parties are unbalanced.Interest measurement is a method often used the civil judicial practice, seen from the existing literature is one of the few interests in study, scholars have noted the interests of the measure has two different meanings, which are the theory of balancing of interests balance theory in Germany and Japan’s interests. Therefore, this paper advocates setting up the act preservation system of providing equal protection for the plaintiff and the defendant.This thesis consists of four chapters:The first part firstly introduces the essence of the meaning of act preservation, and analyzed the general theory of act preservation. Secondly, introducing of Germany and Japan in the interests of measure theory. Introduces the necessity and importance of interest measure in the use of act preservation. Finally, summarizes some general factors from the relevant national legislation in the act preservation.The second part Introduces the continental law system and the Anglo American law system’s legislation in the act preservation system, the same points and different points of the two legal systems are compared, and summarizes the Enlightenment of legislation of two legal systems to perfect the act preservation in china.The third part describes the present situation and reasons of lack of balancing of interests in China in the act preservation. Then, analyzing the current act preservation provisions, started from the problems found, for the balance of interests of the solution to the problem.The fourth part introduces the macroscopic concept and microscopic operational measures are two different ways to improve the system behavior preservation.