On Act Preservation System

"Act Preservation System"was formally established in our country in 2012,fill in the legislative loopholes for temporary relief of the common civil tort and is the big step in the "Preservation System Legislation"."Act Preservation System'has a great significance in judicial protection for civil rights and in establish judicial authority and so on.The establishment of'act preservation"has values in many aspects.It be ale to meet the needs to relieve the civil rights timely in judicial practice,to perfect the system of "Civil Preservation System"and to realize the full range of relief timely for civil rights.In addition,it can play a procedure of shunt function and has the important value of system."Act Preservation System'is a special system who has a complete procedure,it should belong to a special civial procedure and has the characteristics of its own system."Act preservation"as a indepandent procedure,has a very early origination in overseas.At present,it has formed the"Arrest System"and" Enswtielgveefurgugn " in some countries and areas,such as Germany,Japan and Chinese Taibei,and the United Kingdom and the United States as the representive of "Temporary Injunction".Because of its long history,it has rich ecperience of theory and practice.Today,it has formed a more mature and complete system.In China,the 1998 "Civil Procedure Law of the People's Republic of China(Trial)" provided for litigation preservation and prior payment,which does not involve the preservation of the contents of the "act preservation".The 1991,"People's Republic of China Civil Procedure Law"(here in after referred to as "Civil Procedure Law")changed the "preservation"to" property preservation and pre-implementation",which "pre-implementation"contains some contents of "act preservation".Until the 2012,the amendatory "Civil Procedure Law"has established the "Act Preservation System" fully in the filed of civil litigation.However,the application rate of act preservation in judicial practice is very low.In China,the reason why the "act preservation" has such a low rate of application,the main reason is that the legislation is more general,and its applicable conditions did not distinguish from property preservation.The specific problems manifested that the legislation of the existing "act preservation" is chaotic,the definition of legislation on the "act preservation" is unclear,lack of legislation to make definite provisions of the conditions for the determination of the "act preservation",the people's court as the subject who start "act preservation" violate the principle of the parties disposition,lack of relevant provisions of the trial,the application of the guarantee and the amount of the guarantee are unreasonable and the relief process of "act preservation"is not comprehensive.On the basis of drawing on the excellent experience from abroad,and combined with the practice of China's preservation system,this paper given the relevant suggestions.The most important is to straighten out the legislative system of'act preservation system",redefine the"act preservation",abandon the discrete legislation pattern of taking security strategy before and during litigation,and construct discrete legislation patterns of"act preservation" and "property preservation".Furthermore,the relationship and differences between "act preservation" and "pre-implementation" should also be paid attention to.Then,it is necessary to give accurate appliacation requirements and application conditions of'act preservation",make clear definitions of application requirement and application conditions and guarantee the litigation rights of the applicants.Finally,some suggestions in other procedural matters are given,including that the people's courts shouldn't have the authority to start the legislation of "act preservation" based on its authority of office,the "act preservation" trial procedure should be set up,the assurance and assurance amount should be further improved and that the relief institution of "act preservation" should also be detailed.