On The Substantive Examination Of Property Preservation Application In China's Civil Procedure

Property preservation system,as a very frequently used system in judicial practice in civil litigation,has played a very important role in ensuring the smooth realization of creditor's rights in a long period of time.However,in recent years,with the rapid increase in the number of civil and commercial cases in courts at all levels and the emergence of fewer cases in the courts,the court's application for property preservation has become more and more formal rather than substantive,resulting in the inversion of the end between the examination of the elements of the application for preservation and the provision of guarantees.The consequence is that when the court examines the property preservation application of the parties,it almost regards the provision of guarantee as the only requirement for consent to the application for preservation.It completely ignores the necessity and risk requirements of the application for preservation originally stipulated in Articles 100 and 101 of the Civil Procedure Law,which makes the long-standing tension between the examination of the requirements for preservation and the provision of guarantees.The department is more prominent.The lower threshold for the applicant to provide security leads to an increase in the risk of the respondent being wrongly preserved property,and also gives the applicant with "ulterior motives" the opportunity to achieve illegal purposes by preserving other people's property.Although the respondent has some remedies,such as reconsideration and counter-guarantee,it has little effect because of objective reasons.Although damage compensation litigation can be instituted for wrong preservation,it is difficult for the respondent to obtain effective compensation due to the limitations of the elements of tort liability required by property preservation error compensation relief,such as "imputation,difficulty of proof".Therefore,it is necessary to conduct a substantive review of the application for property preservation under two different circumstances of distinguishing between the errors of property preservation.First of all,most of the cases of false preservation are caused by the rejection of the applicant's claim.Therefore,we can examine and judge the possibility of the applicant's claim winning from the two most obvious elements of the applicant's suit,namely,whether the litigant is qualified or not and whether it has the interest of litigation.If there is no possibility of winning a lawsuit,the applicant's application for preservation has a high probability of becoming false preservation and should not be granted by the court.Secondly,a few cases of property preservation errors are also caused by the fact that the object of property preservation is not owned by the respondent but by outsiders.Therefore,we can examine the ownership of the subject matter preserved by combining the criteria of "appearance right and real right" and "formal property right and substantive property right".Finally,in addition to the methods and standards of examination,we need to improve the procedure of examination for the substantive examination of the application for preservation.First of all,for the review procedure and method of preservation application,we should change the existing single written "unilateral trial" mode,and selectively adopt the "double trial" mode according to the different situations of property preservation.Secondly,substantive review is ultimately conducted by judges,so it is necessary to introduce the "preservation error rate" evaluation index to supervise and restrain judges and correct their "unwilling" practice of substantive review.