Research On The Improvement Of Behavior Preservation In China's Civil Litigation

The legal confirmation of the civil behavior preservation system in our country has greatly expanded the scope of application of the object of preservation.As various cases are constantly moving towards a complex direction,there is a legal basis from the legislative level from which laws can abide by.However,in judicial practice,attention still needs to be paid to the difference between the preservation of conduct and the system of property preservation and first execution.The purpose of the design of behavior preservation system is to ensure the realization of the litigant's right of action.If the right of the applicant has realistic and urgent harm,and after a long trial,it may be difficult to get effective implementation,and take temporary safeguard measures in advance.In the trial process,we should base on the nature of the behavior preservation system,and focus on the rights and obligations of both parties to the trial,so that they can reach a balance to the greatest extent.When identifying the application put forward by the parties,the judge should not only review the specific provisions of the law,but also make a comprehensive determination combining the opinions of both parties,the actual situation of the case,the past cases and other factors,and do a good job of Equal protection of both parties.The core point of the thesis focuses on the problems existing in this system and suggestions for improvement,and the author selects six angles to analyze the existing problems.It mainly includes: the vague application conditions of behavior preservation,the single way to start the procedure,the court of behavior preservation jurisdiction which needs to be refined,the trial procedure of behavior preservation which is lack of scientific nature,the guarantee system of behavior preservation which needs to be clear,and the single remedy way of behavior preservation error.Behavior preservation,an important part of the preservation system,the accumulation of its own problems seems to be the reason for the low utilization rate of this system.Specifically speaking,there are some unsatisfactory aspects in the initial stage of the start-up procedure,the review stage of the procedure and the relief means after the end of the procedure.This not only can not achieve equal and effective protection for all parties in the trial,but also makes the original intention of the people's court to resolve disputes through judicial procedures impossible to realize.In view of the above problems,the author puts forward the following suggestions: to clarify the applicable conditions and procedures of the behavior preservation system,to promotethe diversification of the starting mode of the behavior preservation,to refine the provisions of the behavior preservation system on jurisdiction,to implement the principle of debate in the behavior preservation system,to perfect the provisions of the guarantee system in the behavior preservation,and to enrich the compensation mechanism of the action preservation relief.Corresponding to the above existing problems,the perfect proposal also includes three parts: the front end,the middle end and the later stage of the system operation.The detailed provisions of the behavior preservation system should be perfected and supplemented in all directions to maximize its role in the trial procedure.