Confirming On The Improvement Of Litigation Preservation Guaranty In China

Litigation preservation means that the people's court takes mandatory protect measures on the property or controversial subject matter before litigation or legal proceedings in the courts,the interested party or the parties or itself make the application to ensure that after the decision they will get effective implementation in the future.In recent years,the preservation of litigation cases across the country are explosive growing,for example,the litigation preservation cases in yushan people's court where the author working rise rapidly by 78% and 102% in the past two years.On the one hand,it reflects the enhancement of the litigant's legal consciousness,on the other hand,it also highlights the weakness of examining the grounds in court and the abusing of litigation right in the parties.Based on the spirit of the civil and commercial equal protection,our China's Civil Procedural law requires that the applicants should provide appropriate assurance under certain conditions in order to avoid security error.Due to the principal provisions in China's Civil Procedural law and judicial interpretations,different courts in the same area,even different judges in the same court have different requirements on providing warranties,guarantees form,the guarantor subject qualification etc.According to the analysis of practice and legislation in our country recently,I find many problems in litigation preservation guaranty like too much stress,bad scrutiny,unclear effectiveness.Although there is a breakthrough in the way of guarantee,such as the fourth intermediate people's court in Beijing legislates on property preservation in civil and commercial trial the introduction of the regulation of liability insurance guarantee way.But we have to admit that litigation preservation guaranty in our country is still not mature enough in the aspect of theory and practice.By learning the research achievements existed and analyzing the advanced legislation from overseas,the author wants to bring forward ameliorative measures about perfecting our country's litigation preservation guaranty.This paper consists of five parts.The first part briefly describes the basic theory of litigation preservation guaranty.By identifying the similarities and differences between the litigation preservation and the litigation preservation guaranty,the litigation preservation guaranty and the civil guaranty,this part comprehensively expounds the characteristic and value of the litigation preservation guaranty in order to form a basic cognition.The second and the third part,the author shows current litigation preservation guaranty in our country from the practice and legislative aspects.The fourth part compares the typical national systems in two major law families on the litigation preservation guaranty.The fifth part puts forward a series of measures combining status of legislation and judicial practice in our country with foreign advanced legislation.In terms of improving the way of guarantee,the author tries to introduce the escrow company by establishing strict censorship guarantee qualification,clearing the legal responsibility and norms so that the court could supervise the escrow company.On perfecting the review process,the law should combine formal examination with substantive examination,or introduce the hearing system timely,then correctly handle the relation between the guarantee property system and the litigation preservation guaranty to clear which own the priority in different situations.Also we should confirm the purview of guarantee and the guaranty period.Finally,on regulating the procedure of releasing litigation preservation guaranty,it's necessary to treat fairly and give equal protection between the applicants and the respondents when they apply for litigation preservation or provide counter-guarantees as well.