Research On Liability For Erroneous Damage In Preservation Application

Articles 81 and 100,paragraph 1,and 101,paragraph 1,of the newly revised Civil Procedure Law in 2017 provide for evidence preservation,property preservation,and behavior preservation systems,and Article 105 stipulates liability for damages of preservation errors.Although the design of the preservation system enables creditors to obtain a temporary relief without going through the trial process,for the respondent,the preservation restricts the rights of the respondent within a certain period of time,which will inevitably impose on the respondent.The interests caused a certain loss,which brought the issue of compensation for the loss of the insured.The Civil Procedure Law in Article 105 stipulates that the liability for preservation of wrongful damages shall provide relief to the respondent,but there is no detailed stipulation on "application erroneous".In practice,often make different judgements in same cases.Therefore,this article intends to discuss the disputes related to the liability for erroneous damages for preservation applications,and strive to resolve the chaotic situation in judicial practice.This article is mainly divided into four large chapters:The first chapter is the the summarize of Liability for Erroneous Damage in Preservation Application.Firstly,through the proposal of liability for erroneous damage in preservation application,and the interpretation of the relevant provisions of the Civil Causes Regulations and the Civil Procedure Law,the research scope of this paper is determined to be the liability for erroneous damages for application of evidence preservation,property preservation,and act preservation.Secondly,through the interpretation of article 105 of the Civil Procedure Law and article 16 of the Provisions on intellectual property act preservation,the particularity of the liability for compensation for wrong damage in the application for preservation is concluded.Thirdly,through the reading of the 115 types of judgments for preservation applications identified by the author on the WeiKe Advanced Legal Information System,analyze the types of wrong application for preservation,and it also sums up the dilemma of ascertaining the liability for compensation for damages wrongly applied for preservation in judicial practice.The second chapter is the theoretical basis on the protection of erroneous damages for preservation application.Firstly,determining the requesting right basis of the liability for preservation application erroneous damages.Secondly,from the perspective of the attribution principle's application,the nature of the liability for wrongful damages of the preservation application is determined as general tort liability,and the attribution principle is the fault liability principle.The last,establishing the elements of the liability for erroneous damage,leading to the theme of Chapter III-the identification of "fault elements".The third chapter is the identification of the negligent requirements for the application of the compensation for wrongful damages.Firstly,it analyzes the criteria for defining the "fault" element in the liability for erroneous damages in the application for protection.Second,it analyzes the determination of the "fault" element from the perspective of the burden of proof.Clear guidelines,and finally put forward that you can try to apply apparent proof to alleviate the applicant's burden of proof for fault elements.The fourth chapter,as the last chapter of this thesis,mainly discusses the reasons for the particularity of the liability for erroneous damages and the legislative improvement.This chapter analyzes the difference between the nature of intellectual property behavior preservation and property preservation as a consideration factor,combined with other consideration factors to comprehensively analyze the intellectual property rights dispute behavior preservation application error damage compensation liability as a special cause.Finally,based on the full text of the discussion,put forward legislative suggestions to protect the liability for wrongful damages.