Liability And Compensation For Property Preservation Errors

Along with the advancement of the rule of law construction in China,the rule of law consciousness increases.To safeguard their own lawful rights and interests through legal proceedings,at the same time,property preservation has been widely used.Apply for property preservation can not only prevent the respondent transfer property,escape debts;but also protected the rights of the applicant.Property preservation is not,however,perfect.If the applicant abused property preservation,will not only waste of judicial resources,at the same time,the legal property of the respondent will therefore suffer.At the same time,the current law for property preservation errors due to the responsibility and compensation rules too general,for a specific detailed imputation problem did not make the detailed rules.In the judicial practice,to apply for preservation mistakes that are not very same,the judge will due to its understanding of the law is different to a similar situation in different sentence.Therefore,how to improve the system of property preservation,make the property preservation system in both to protect the legitimate rights and interests of the applicant,and safeguarding the smooth progress of the case at the same time,also can prevent the abuse of power,maintain the lawful property of the respondent is now urgently needs to solve the problem.This paper will be divided into four parts;the specific content is as follows:The first part,the case description and case problem of induction.The author through the Gao Hong company v.Zhong Tian company property preservation errors,Le Ye company v.Qian Yu company property preservation two cases leads to property preservation errors on the problems existing in the judicial practice: the property preservation misapplication of imputation principle;property preservation,the main responsibility of the security errors when an outsider's rights should be how to remedy the invasion;And the case analysis is summarized in the above problems.The second part,the theory analysis of property preservation errors related issues.This section will be summarized in the case of problem and the combination of theory,theoretical analysis of the above problems.First,property preservation errors the applicant shall assume tort liability for damages,but in specific analysis,apply the principle of general tort liability rules or the rules of special tort liability principles,are controversial in theory and practice,to preserve errors the imputation,must be clear the specific applicable principles of imputation.Second,the provisions of the civil procedure law in our country,the applicant shall save error shall bear the liability for compensation,but when applying for property preservation guarantor property preservation or court in accordance with the authority to take property preservation in preservation errors,how the liability to pay compensation,in the existing legislation is not clear.Clear property preservation of error compensation for the main body,make the victim rights are better security.Third,property preservation damaged rights and interests of an outsider,the provisions of the supreme law has solved an outsider to a certain extent the lack of way to relief the embarrassing situation,but in practice,an outsider also has certain difficulty relief way choice.Clear an outsider in what circumstances put forward v.the dissent of enforcement circumstances under which another lawsuit,to safeguard the legitimate rights and interests of an outsider.The third part,analysis of the above two cases.Two cases are filed by the applicant apply for property preservation tainted litigation,two cases,there are many similar spending but it is not the same court the final decision.Due to a lack of clear legislation result in is difficult to get unified standards in judicial practice,it is not only conducive to safeguard the legitimate rights and interests of the parties,but also detrimental to the judicial authority.The fourth part,through the analysis of this cases,from the deficiency of existing legislation put forward legislative advice.By defining the property preservation mistakes of tort liability to pay compensation standards,specific property preservation error compensation main body,perfect the third person relief way put forward the Suggestions to improve the system of property preservation.