The Criteria For Determining The Error Of Property Preservation

Property preservation is a temporary coercive measure to restrict the parties or interested parties to dispose of their property.It plays an important role in protecting the legitimate rights and interests of the parties and ensuring the execution of the effective judgment in the future.However,property preservation is also a double-edged sword.If property preservation is wrong or misused,it will cause losses to the defendant.Therefore our country<Civil Procedure Law>105th stipulates that"the application is wrong,the applicant shall compensate the respondent has suffered due to loss of preservation."So what" application errors ",civil procedure law and relevant judicial interpretations have not been further clear.In the judicial practice,the expression of "the application has errors" is different:some judges advocate that according to the result of the judgment to determine the preservation error,the failure of the lawsuit is a mistake,or according to the result of the judge to identify the subjective fault of the party;Some judges hold that the right and wrong of applying for property preservation should not be assessed on the basis of the judgment result,and that the judgment result has nothing to do with the subjective fault of the parties.Some judges do not use excess or not as the criterion of error.Sum up,the practice of property preservation in the cognizance of error under the existing prominent problems:one is to apply for property preservation with standard of errors and confusion,losing theory is difficult to unify river's lake in that property preservation errors;The second is the contradiction between the judgment result and the application of fault theory.Third,the overapplication of property preservation whether there is an error in the same case.In judicial practice as complex property preservation have error of standard will have three:one is the current civil procedure law and the related explanation about apply for property preservation law of error is less,relevant legislation deficient;Secondly,there is no unified theory on the classification of application property preservation errors and the principle of attribution,which is difficult to provide corresponding theoretical guidance for judicial practice.The third is to identify the bottleneck of the property preservation error itself,which is mainly reflected in the degree of subjective fault and the difficulty in the allocation of proof of burden of proof.In order to clearly identify the criteria for applying for property preservation errors,it is necessary to standardize the standards for the identification of property preservation errors.First of all,it is clear from the legislation that the principle of fault liability is dominant and that the principle of no-fault liability applies as the overall guideline for exceptions.Second,different types of property preservation errors should be clearly defined.Different judgment criteria should be applied to different types of errors:The application premise is wrong,and the principle of no-fault liability applies.In cases where the amount of application errors and the amount of application for protection and the judgment result are significantly unreasonable,the redistribution of burden of proof is used to adjust the balance between the interests of the applicant and the respondent,and the principle of presumption of fault liability is applied.In addition,the general principle of fault liability applies to other cases.In addition,it is also necessary to improve the remedy procedures for applying for preservation errors and related supporting mechanisms to assist the concrete implementation of the standards for the preservation of property preservation.Only by judiciously improving the judgment standards of relevant property preservation can we scientifically guide the judicial practice of applying for the preservation of property,so that the parties can protect their legitimate rights and interests without harming the interests of others.