Research On The Protection Of The Rights And Interests Of The Respondent In Behavior Preservation

The modification of the preservation part in the civil procedure law in 2012 extended the scope of the objects of preservation to ACTS,which improved China's civil preservation system.However,after extending the object,there is no separate stipulation on the behavior preservation,but the stipulation is in the same law with the property preservation stipulation.This approach not only ignores the particularity of the behavior preservation compared with the property preservation,but also leads to a series of problems in the practical application of the behavior preservation.The main problem is that the legal rights and interests of the respondent cannot be well protected.In the course of behavior preservation,the court shall make a ruling on the basis of the applicant's application or according to its functions and powers,and order the respondent to do or prohibit him from doing certain ACTS.Under the current behavior preservation system,the respondent lacks the participation of the procedure and has no perfect relief system.In addition,the object of behavior preservation is non-reversible,and the rights and interests of the respondent are often ignored or even suffer undeserved losses.Therefore,this paper,from the perspective of the respondent's rights and interests preservation,discusses how to improve the existing behavior preservation system in China.The first part elaborates the research of this paper and combines the existing typical cases to sort out the development and problems of the protection of the rights and interests of the respondent in the behavior preservation in the current judicial practice in recent years.The second part mainly analyzes the existing behavior preservation system in China and finds out the problems in protecting the rights and interests of the respondent.Firstly,it analyzes the provisions on behavior preservation in China's laws such as intellectual property rights,maritime affairs,environmental protection and civil procedure law.Secondly,based on the analysis of these legal provisions,this paper summarizes the problems existing in the protection of the rights and interests of the respondent in China's current behavioral security system,which are the overly general application conditions,the absence of the respondent's participation in the procedure,the easy abuse of security guarantee and the lack of perfect relief system.The third part mainly analyzes the legal systems of the representative countries in the civil law system and the Anglo-American law system in respect of behavior preservation,and finds out the aspects worthy of our country's learning and reference.In the fourth part,aiming at the problem that the behavior preservation fails to protect the legal rights and interests of the respondent in reality,on the basis of referring to the good practices of relevant systems outside China,the author puts forward Suggestions for the improvement of behavior preservation in China.Firstly,on the initiation of behaviorpreservation,the subject of initiation should be limited to guarantee the right of disposition of both parties.Secondly,in terms of the application conditions of behavior preservation,it clarifies the application materials that the applicant needs to submit during the application and the proof of the necessity of behavior preservation of relevant materials.At the same time,the guaranty is taken as the necessary condition of applying for the behavior preservation to prevent the abuse of the behavior preservation by the applicant and damage the legal rights and interests of the respondent.Third,strengthen the respondent's participation in the process.In the behavior preservation,in addition to the applicant's application behavior,the court's examination link and the reconsideration link should endow the respondent with the right to participate in the corresponding procedure.Only in this way can the respondent's right of statement be guaranteed and the accuracy of behavior preservation be improved.Finally,in terms of the relief to the respondent,the procedure of the respondent applying for reconsideration,the identification of the preservation error and the way and amount of compensation for the preservation error when applying for the preservation error compensation are clarified.