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The Research On Claims Of Damages On Error In Property Preservation Application

Posted on:2017-08-17Degree:MasterType:Thesis
Country:ChinaCandidate:X Y FangFull Text:PDF
GTID:2336330488972493Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Regulations respecting identification of the error in property preservation application can only be found in section.105 of the Code of Civil Procedure, which stipulates ambiguously. When considering the standard for identifying the liability for damages for the error in property preservation application, judicial practice and academic theory have difference opinions. Clarifying the related issues, claim of the damages resulting from the error of the application of property preservation is a claim of tort, and the principle of liability fixation of damages for the error should be a principle of fault liability. In this type of litigation, in order to alleviate the difficulty in proving the existence of the fault, the Court shall adopt the principle of prima facie evidence and the principle of circumstantial evidence. Meanwhile, the identification can be justify by expanding the scope of the automatic relief from the decision of property preservation and stipulating that the relief of the decision on the property preservation should be decided by the court which is in charge of the original case where the application stemmed from. It will improve efficiency and conserve judicial resources by allowing the respondent of the application of property preservation to raise an counterclaim of the claim of the damages resulting from the error of the application during the original case. In addition to the introduction and conclusion, this paper is divided into five parts:The first part analyses the litigation system of the damages for the error of the property preservative application from the theoretical perspective. Through the overview of regulations respecting the claim of damages for error of the property preservation application and the development of the related legislation, it will be clear that although the right of claim stems from provisions of civil procedural legislation, it essentially is a substantial claim and a claim of damage for tort. The discussions about the necessity and the feature of this right of claim set a basic tone for hereinafter discussed about remedies and balance of the right.The second part is the discussion of the doctrine of liability fixation of compensation for damage responsibility about the error application of the property preservation. Through the horizonal angle of extraterritorial studies and the vertical angle of local legislative evolution,it explicited that the doctrine of the liability for fault should be the criterion of liability of the property perservation when application is wrongfully made.The third part is about the proving problems of the compensation for damage of the wrongful application of the property perservation in a lawsuit. According to Article 105 of The Law of Civil Procedure in China,the ultimate facts of the action for damages on error application of the property preservation is divided into two essential points, one is that the application is wrongfully made,the other one is that relevent respondent is actually suffered damages from the error application of the property perservation. Although the burden of proof is distributed by the legal essentials classification theory(tje standard theory),the plight of proving the fault essentials is still existed.In order to solve the problems of proving fault, The forth part of the thesis aims at clarifying the method of identifying the application errors of property preservation.With the application of primary-face proof and indirect proof,the problems will be relief in actions for damages of application errors of property preservation.Meanwhile,enlarginge the scope of automatice rescission ruling of property preservation and determing the court that accepts the case will justify cognizance of application errors.The fifth part of the thesis puts forward to questions about actions for damages of application errors of property preservation.The result of the basis case is not highly related to the determinration of error.Therefore,the regulations about counterclaim needed to be perfected and respondent of property preservation could counter claims for actions for damages of application errors of property preservation,which will be beneficial to the truth of case,improvement of lawsuit and judiciary resources saving.
Keywords/Search Tags:the claim of damages for error of the property preservation application, doctrine of liability fixation, identifying the application errors of property preservation, the way to put forward the claim
PDF Full Text Request
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