A Study Of Suit For Damage Caused By The False Civil Preservation

When the problem of Judicial implementation has not been fundamentally resolved,As a temporary remedy to protect the interests of the parties,civil preservation is becoming more and more popular in the judicial practice.However,when the parties to apply for civil preservation,the case did not enter the substantive trial stage and The judge has just conducted a procedural review,therefore,more and more wrong cases have been produced.“There will be a victim crime,victim should have the relief”.In order to remedy the victim,the Article 105 th of the “Civil Procedure Law of the People's Republic of China ” stipulated that If an application for preservation is wrongfully made,the applicant shall compensate the person against whom the application is made for any loss incurred from preservati-on.But because of the unclear meaning of this article,Victims are often unable to obtain compensation.Therefore,this paper intends to make a simple analysis on the suit for damage caused by civil preservation,and try to solve the confusion in the judicial practice.The paper is composed of four chapters.as follows:Chapter?is mainly define the scope of research of the suit for damage caused by civil preservation,including the suit for damage caused by evidence preservation,the suit for damage caused by property preservation and the suit for damage caused by behavior preservation,through the Civil Procedure Law of the People's Republic of China and the Causes of Action in Civil Cases.The main materials of this paper are 71 civil judgments of Shanghai and Zhejiang,which are collected by the China Judgment Online.Chapter ?firstly analysed two litigation elements of the suit for damage caused by civil preservation;Secondly,author has tried to solve the suit for damage caused by evidence preservation by introducing the counterclaim,and then analysed the feasibility and necessity.Chapter ? firstly probes into the establishment of tort liability of false civil preservation from the angle of tort law,and then think the principle of liability with fault is suitable;Secondly,through the method of empirical analysis to determine the scope of compensation of the false civil preservation.Chapter ? probes into the necessity and rationality of the existence of the article 105 th of the civil procedure law from the angle of the system of law,and thought it would not be necessary.We can solve tort caused by false civil preservation by the Tort Law.