The Study On The System Of Civil Preservation Security

We use the word “security” in the civil procedure law but “guarantee” in the civil substantive law. Civil preservation security plays an important role in Civil Procedure Law. It’s greatly different from the guarantee in Guaranty Law and Property Law both in legal attributes and legal effects. In China,we don’t pay enough attention to civil preservation security both in theory and in practice circle. So it brings a lot of trouble to practical action. The main purpose of this study is to clarify the true meaning of civil preservation security, clear its properties and role in the law to make it play its proper value and function in civil procedure. My research method is mainly used in the legal analysis and empirical analysis.On the one hand,I inspected the laws of the country, the Supreme Court’s judicial interpretations and the High Court’s related views to the civil preservation and evaluate theirs rationality and shortcomings. Drawing on the relevant legislation in Germany, Japan and other countries, I hope to learn from useful experience, improve our legislation. On the other hand, through the civil preservation security dynamic study in judicial practice, I analyzed the problems encountered in practice and the reasons for these problems. Thesis is divided into three parts:The first part is the basic theory of civil preservation security, pave the way for full discussion. First, I analysis the connotation of civil preservation security. Act preservation was introduced in the preservation system when Civil Procedure Law revised in 2012. Secondly, I study the characteristics of the civil preservation security. It only attribute on the procedure law and dose not have an effect on the substantive law. Finally, I researched the legal effect of the preservation security,it has the same legal force as civil preservation.It’s also a temporary enforcement measures in the proceedings, which itself does not produce effects on the substantive law.The second part is the research on the civil preservation security system of our country from static and dynamic sides. In the legislation,I focused on the necessity,the amount and the way of preservation security. It’s neither necessary nor sufficient conditions for preservation. The standards should be in accordance with the amount of the loss may be caused by the applicant to determine, not an absolute requirement for matching applicants with the preservation of property in the past.The way of security can be in material object,cash,credit and rights.In the operation, I studied the establishment,the implementation and relieve of civil preservation. It takes the same way as preservation of the property of the applicant,through the seizure, freezing, seizure of ways.Realize the need to preserve security by further litigation to achieve, and can not be directly realized by executing program. It will not relieve when the preservation be relieved.The third part is some proposals to the civil preservation security system. We should strengthen the control of judicial discretion and further improve the censorship regulations of the security from the program. From the content is concerned, it should be safe to introduce the credit security by the guarantee corporation and make the amount of the loss may be caused by the applicant as a standard.