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Determination Of The Liability Of The Applicant For Property Preservation In The Case Of Failure

Posted on:2021-03-19Degree:MasterType:Thesis
Country:ChinaCandidate:Z C WuFull Text:PDF
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Because the law of our country is too simple for the property preservation error,the theoretical and practical circles have not formed a unified understanding of how to determine the responsibility of the applicant in the case of the preservation error,which has a negative impact on the judicial practice.In order to clarify the relevant problems,this paper analyzes the imputation principle which should be applied in the case of property preservation error,the problems existing in the court decision in practice and the causes of formation,and then puts forward the feasible method to solve the corresponding problems in combination with theory and practice.This paper is divided into three parts.The first part is about the argument about what imputation principle should be applied in the case of property preservation error.After introducing the three viewpoints of the theoretical circle,the author argues that no-fault liability should be applied from the angle of literary interpretation,logical interpretation,legislative interpretation and judicial interpretation.The second part is the analysis of the problems and causes injudicial practice.At present,the court mainly adopts the principle of fault liability when trying related cases,and limits the applicant's fault to intentional and gross negligence.After analyzing the judgment scale and judicial policy of the court in different periods,it is revealed that the judgment scale in favor of the applicant is the realization of the court The goal of "solving the difficulty of execution" encourages the parties to apply for property preservation by taking special measures.The third part is to put forward a solution to the problems existing in the current court judgment scale,that is,in order to balance the interest relationship between the applicant and the respondent,the applicant's fault should not be limited to intentional and gross negligence,but should be subject to a more strict duty of attention according to the principle of good faith.If the applicant fails to perform his duty of careful examination,he shall be found guilty.
Keywords/Search Tags:Property preservation error, imputation principle, intentional or gross negligence, difficult execution, principle of good faith
PDF Full Text Request
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