Research On The Duty Of Care In Property Preservation

Regardless of the theoretical circle or judicial practice,the damage compensation dispute caused by the wrong application of property preservation is essentially classified into general tort,which belongs to the scope of tort liability law,and the principle of fault liability should be applied.This article takes the property preservation application error as the research object and subdivides the type of property preservation application error.In the conflicts of different viewpoints of the courts in the three cases,the current judgments on the misconduct of property preservation in China are different and the types are correct.This paper believes that the introduction of the theory of duty of care can better balance the balance of interests between applicants and related stakeholders,and achieve the existing deficiencies of the property preservation system in a targeted manner.First of all,this paper analyzes the introduction of attention obligations in property preservation errors from three aspects:legitimacy,necessity and feasibility.From the perspective of legitimacy,the responsibility of preservation error should apply the principle of fault liability,and the concept of fault presents a trend toward objectification,which is consistent with the theory of duty of care;from the perspective of necessity,duty of care not only helps The dynamic perspective unifies the criteria for judging whether there is a mistake in the preservation behavior,and also helps to clarify the extent of the fault of the perpetrator in the case;from the perspective of feasibility,the relevant legislation introduced in the field of infringement in China has introduced the duty of care.In the judicial practice,the Supreme Court has repeatedly adopted the duty of care,and the development of the case guidance system in China has also brought a strong vitality to the duty of care.Secondly,this paper discusses the judgment criteria of the existence of the duty of care in the preservation error:in the existence of the duty of care of property preservation,it should be judged from the aspects of statute and legal norms,technical norms,habits and common sense,and preemptive behavior;In the case of violation of the duty of property preservation,it shall be judged by the general reasonable person standard.Finally,the author has typed the duty of care in the preservation of the error compensation dispute,summed up the five major duty-of-care obligations of timely exercising the right of action,judging the legitimacy of the procedure,screening the object and amount of preservation,determining the necessity of the preservation application,and reviewing the legitimacy of the claim.The level of the above-mentioned duty of care was analyzed.