Research On The Preservation Guarantee System Of Civil Procedure

In the revision of the Civil Procedure Law in 2012,the relevant provisions of "act preservation" have been added,which indicates that China has basically established a temporary relief system corresponding to "fictitious distress" and "conservatory measures in litigation " in the preservation procedure of continental law countries.In the Judicial Interpretation of the Civil Procedure Law promulgated by the Supreme People's Court and the Provisions on Several Issues Concerning Property Preservation Cases handled by the People's Court,a series of improvements and amendments have been made to the preservation procedure and supporting measures,so as to minimize the threshold for applicants or interested parties to apply for preservation and promote the full play of the role of the preservation As one of the key links,preservation guarantee in civil litigation is an important factor for judges to decide whether to make a preservation decision in the practice of preservation.The aforementioned legislation does not systematically stipulate the system of preservation guarantee,over-principled legislation and many loopholes make the judicial practice of the people's courts in different areas show great differences.Through a thorough analysis of legislation and practice,the author tries to further improve the framework and content of the preservation guarantee in civil litigation so as to realize the fair protection of the legitimate interests of the applicant and the respondent,avoid the guarantee becoming a tool for the parties to abuse the preservation procedure,make the preservation procedure return to its establishment value,guarantee the orderly conduct of the litigation procedure and safeguard the judicial authority.This article is divided into four chapters.The first chapter is mainly about the overview of the system of preservation guarantee in civil litigation.The first section gradually introduces the concept of preservation guarantee in civil litigation and gives a more comprehensive definition of its connotation and legal nature.As far as the characteristics of the preservation guarantee are concerned,the author mainly pays attention to its relationship with the preservation procedure,its unilaterality and mandatory,Discretionary of amount and form,guarantee liability need to be determined in another case.The second section is about the concept of preservation guarantee in civil litigation and civil enforcement guarantee,through horizontal comparative analysis,we can grasp the main points of the system of preservation guarantee in civil litigation.,so as to make the research of the security system more pertinent.Section three is a detailed analysis of the functions of the security guarantees generally accepted in theory.Different functional choices have their rationality,but the author thinks that the security system of civil litigation in our country should return to its essence,with balancing the interests between the applicant and the respondent as its primary function,which will prevent abuse of the security procedures and make up for the inadequacy of the applicant's preservation for its derivative function.Chapter two is mainly from two perspectives of static legislation and dynamic judicial practice,which is divided into three sections to analyze and investigate the current situation of China 's preservation guarantee system in civil litigation.In terms of legislation,by summarizing and sorting out the relevant laws and regulations in legislative and judicial explanations,this paper focuses on the neglect of the necessity of independent review of guarantee,the unreasonable determination of the amount of guarantee,the rough regulation of the way of guarantee,the unclear assumption of the responsibility of guarantee and the imperfection of the relief mechanism of guarantee.In practice,through summing up the judicial practice of local high courts,the relevant judgments of the judicial documents network and the investigation reports of some higher people 's courts,it is found that the relevant legislative provisions have been changed in the review of the establishment of security in many high courts.The relevant judgments are also based on the civil substantive law to determine the responsibility of security,and most courts are confused in the practice of rescission of security guarantee.Finally,the author has a deep reflection on the procedural guarantee,the necessity of guarantee and the judicial practice of all walks of life of our country's security system.Chapter three is a comparative study of the security system in extraterritorial civil litigation.This chapter mainly introduces the provisions of relevant systems in civil law and common law countries,including Germany,Japan,France,the United Kingdom,the United States and other countries,and combs their unique procedures for the review of security guarantee,so that procedural safeguards run through the whole system of security guarantee.In addition,the author makes a comprehensive comparative analysis of the relevant systems of the two legal systems from the function choice,to the necessity review of the preservation guarantee to the specific procedural provisions,and collates a number of points which is worth of learnnig.Chapter four is based on the advanced points in the legislation of the two legal systems,combining the practical characteristics and legislative status of our country's preservation guarantee system,and puts forward some specific ideas to improve our country's preservation guarantee system.It covers the whole process of civil litigation preservation guarantee,including the review,establishment,realization of guarantee liability and the dissolution of preservation guarantee.In order to fully clarify the necessity of preservation,it is necessary to add the procedure of preservation hearing in the procedure of establishing preservation guarantee,optimize the procedure of examining the establishment of preservation guarantee and standardize the content of the decision of preservation in civil proceedings,especially the statement of preservation guarantee.The provisions on the liability of preservation guarantee also need to be unified in the legislation of civil proceedings,mainly including the Enlightenment of the liability of preservation guarantee.In order to improve the mechanism of rescission of security,we should not only prudently apply the procedure of rescission of anti-guarantee,but also urgently need to add the procedure of rescission of security to unify the relevant judicial practice.