The "Fault" Identification Of The Property Preservation In Litigation

In the trial practice,how to identify the fault of the property preservation in litigation has been controversial.The first point is that: it can be identified the existence of "fault" if one of the parties who apply for the property preservation in litigation has malicious(intent or gross negligence),or one of the parties has not done the duty of care that the reasonable people have.Second point of view is that: it can be identified the existence of "fault" if one of the parties who lose the lawsuit or withdraw the lawsuit in the last case.In this situation,the court does not have to review whether one of the parties has done the duty of care that the reasonable people have.In practice,the application of the nonuniform standard will bring a series of problems,such as the loss of judicial authority,the parties refused to accept the sentence,etc..So this problem should be clarified.The paper is divided into four parts except the introduction and conclusion.The first part of this paper research the property preservation in litigation itself,analyze the basic concept and the major function of the property preservation in litigation.A clear function of the property preservation in litigation is a comprehensive embodiment of the core of the protection of the rights and interests of the applicant.At the same time,in combination with the specific measures of Zhejiang court system to apply for the property preservation,it can be recognized that property preservation must be considered in the balance of interests of both the applicant and the respondent.The good design of the system,the court be considered in the balance of interests of both parties in the first time.And the cases of damage compensation of the property preservation in litigation will be reduced.Finally,this part analyzed the basic concept of the damage compensation of the property preservation in litigation and error types of fault.The main types of fault of the property preservation in litigation are the fault of the premise,the fault of the object,the fault of the amount,and the pure abuse.The second part of this paper focuses on the basic research of the "fault" and how to identify it.It is necessary to carry on the thorough analysis research to the principle of fault liability because this principle is used in the cases of damage compensation of the property preservation in litigation.Fault liability principle is the product of the development of punishing concept in a certain historical stage,and how to identify the existence of "fault" has a objective tendency.whether one of the parties has done the duty of care that the reasonable people have,rather than subjective criticism.At last,this part rises to the height of philosophy,analyzing the legal philosophy basis of fault identification from the perspective of correct justice theory,utilitarianism theory and economic analysis theory.In the third part,combined with the cases of the court system in Zhejiang Province,the analysis of fault identification is carried out.Firstly,the paper summarizes the representation of the cases of damage compensation of the property preservation in litigation of Zhejiang Province,It is concluded that in Zhejiang province court trial practice,there are major fault identification of two standard:the first is whether one of the parties make a reasonable duty of care,the second is whether one of the parties who lose the lawsuit or withdraw the lawsuit in the last case.The reason of using the standard whether one of the parties make a reasonable duty of care is mainly from the law stipulates,the protection of the interests of the applicant and the Relief means of respondent.And this standard is on the basis of correct justice theory.The reason of using another standard is mainly from protection of the interests of the respondent,the right boundary of the applicant,judicial authority and efficiency.And this standard is on the basis of correct utilitarianism theory and economic analysis theory.The fourth part put forward different fault identification standard against different type of fault.The premise and object fault should be clearly identified,without using the two standard.If the gap between the amount of the application security and the judgment result is obviously unreasonable,we should adopt the standard that whether one of the parties who lose the lawsuit or withdraw the lawsuit in the last case.If the gap between the amount of the application security and the judgment result is reasonable,we should adopt the standard that whether one of the parties make a reasonable duty of care.It is not a simple legal issue to identify the fault of the damage compensation of the property preservation.In the basic legal framework,it is necessary to consider the interests of all parties concerned.In different social background and economic situation,standard of fault sometimes should relax,sometimes should tighten.Consideration and balance of the interests depends on the judge 's discretion.The whole paper reflects the characteristics of the balancing of interests.In trial practice,the specific circumstances of the case should be combined with the flexible use of the standard of fault identification,in order to achieve the unity of legal and social effects.