Research On Tort Liability For Wrongful Property Preservation Application

In recent years,there are more and more tort cases caused by the wrong application for property preservation.However,the current laws in China have relatively lax provisions on the tort liability for the wrong application for property preservation.In judicial practice,the standard for identifying the wrong application for property preservation is not unified,which leads to the occurrence of different judgments of such cases.Therefore,it is necessary to conduct research on such problems.In addition to the introduction and conclusion,this paper is composed of five chapters,the main contents of which are as follows:Chapter one leads to the problems related to the application error of property preservation.First of all,this chapter sums up the main problems in the judicial practice of the wrong infringement cases of property preservation application,that is,the wrong damage compensation of property preservation application,by summing up the disputed focus of the relevant cases,that is to say,if we want to investigate the liability of the tortfeasor,we must first find out that his act of applying for compensation is wrong.However,in judicial practice,the determination of what constitutes an "error of applying for compensation" is controversial,so this issue needs to be analyzed from two aspects,that is,how the court finds the error of the application and how to determine the scope of compensation after finding the error.The second chapter is the theoretical analysis of property preservation application for wrong damages.This chapter not only analyzes the nature and types of the errors in the application for property preservation,but also expounds the principles of imputation of the errors in the application for property preservation,the connotation of different imputation principles and the value tendency of the protection of rights and interests,to determine the criteria for its judgment.Finally,the author analyzes the constitutive elements of the error in the application for property preservation.The third chapter elaborated the reason of the wrong cognizance standard of the property preservation application.In view of the problems raised in the first chapter,this chapter focuses on finding out the causes of the problems.Through the analysis of legislative provisions,cases and related theories,From the aspects of legislation,theory and practice,respectively,this paper expounds the reasons for the inconsistency of the false identification standard of the application for property preservation.In the fourth chapter,after identifying the error of application,the author discusses how the victim brings forward the action of compensation for damages.First of all,this chapter analyzes the way of bringing a suit for damages,that is,whether it should be brought after the hearing of the pre-appeal case or in the form of counter-appeal in the hearing of the pre-appeal case.Secondly,this chapter also analyzes the jurisdiction court of the action for damages,and finally focuses on the determination of the scope of damages.The fifth chapter puts forward some suggestions on the problems related to the above-mentioned property preservation application errors.This chapter from the lack of legislation and judicial decisions are not unified,to improve the application for property preservation tort liability legislation and ex post relief measures,put forward a number of reference proposals,in order to protect the interests of the applicant and the respondent more fairly,the author tries to plug the wrong loophole of the application for property preservation from the source,so as to reduce the occurrence of such cases.