The Theory Of The Property Preservation Guaranty System

The property preservation guaranty system refers to a system that the applicant or a third person provides certain property or credit as the guarantee in the property preservation program, in order to ensure that the applicant can get compensation timely once the improper property preservation infringes upon the lawful rights and interests of his or hers. The property preservation guaranty system plays an important role in preventing the abuse of procedural rights, balancing the legitimate rights and interests of the two parties and ensuring the smooth operation of the property preservation system. However, there are few provisions related to the property preservation guaranty system in China's current civil procedural law and relevant judicial interpretations at the moment. The content is imperfect and simple, at the same time, the rules are too general and lack operability. Lacking of legislation has led to the chaos in the practice. But as economic exchanges among people are becoming increasingly frequent, civil disputes are increasing and problems of the property preservation guaranty system are becoming more and more in the process of running. Therefore, consummating the property preservation guaranty system of our country has become the urgent needs of social development. This paper introduces basic concept and legal value of the property preservation guaranty system, discusses the present situation of legislation and practice in our country, points out shortages in legislation and problems existing in practice, summarizes the core elements of the property preservation guaranty system, and finally puts forward suggestions on perfecting the system from two aspects, including system optimization and procedure safeguard.The overall structure of the full paper are as follows:The first part introduces the basic concept and legal value of the property preservation guaranty system. Firstly this part introduces the property preservation system, then expounds the connotation and attribute of the property preservation guaranty system, points out the relations and distinctions between the property preservation guaranty and general civil guaranty, and analyses the application value and the real value of the existence of the property preservation guaranty system.The second part discusses the legislation and practice of the property preservation guaranty system. When reviewing legislation, this paper simply introduces the provisions of the property preservation guaranty system in foreign laws and China's civil procedural law and relevant judicial interpretations, carries on reconsidering to them and points out the deficiency of legislation in our country. In empirical aspect, this paper introduces the content of this system in the documents issued by higher people's court of several provinces, and then reflects on the problems existing in the practice.The third part summarizes the core elements of the property preservation guaranty system. This part reviews the necessity, the form, the amount, and the legal consequences of the property preservation guaranty respectively. This part plays a transition role in putting forward the suggestions of perfecting our country's property preservation guaranty system in the next part.The fourth part is the last part, which mainly discusses system optimization and application security. This part is the focus and end-result of the full text. Undertaking the summary of the core elements of the property preservation guaranty system in the previous section, and using the experience of other countries and a salutary lesson from some courts in our country, the author puts forward suggestions of perfecting our country's property preservation guaranty system from two aspects, which includes system optimization and application security.