A Preliminary Study On The Insurance Guarantee Mechanism Of Property Preservation

The security system of civil property preservation is combination of the security system and the property preservation system,which is the guarantee and balance of the property preservation institution.Although the court can accept a variety of forms of security,but there are many deficiencies of the current forms of security.In fact,the current forms have promoted the threshold for the parties to use the preservation procedures.In recent years,there has been an innovative form of security in judicial practice,that is,the insurance security mechanism.Compared with other forms of security,insurance securities have comparative advantages,including low cost,simple procedures,guarantee of reimbursement and so on.There are few studies on the insurance security mechanism in the academic field,and there are few researches on the litigation property preservation liability insurance,and it is more concentrated in the perspective of the insurance company.The research perspective is not comprehensive enough,so the current studies can not provide effective guidance for the further development of the insurance security mechanism.This paper aims to explore the existing problems of the security system,and introduce the feasibility and necessity of the introduction of the insurance security institution,and draw lessons from the relevant experiences of other countries and summarize the relevant risks in the development of China's current insurance security mechanism,so as to put forward targeted suggestions.The paper is divided into five parts:The first part is to describe the present situation of security system of litigation property preservation,including the legislation and practice of current security system in property preservation institution and the concrete development of the current insurance security mechanism.In the legislation,although the new judicial interpretation of the civil procedure law has detailed and definitude the preservation procedures,but there is less reference of the specific operations of security.In practice,there are many problems in the security system of the property preservation institution,including the insufficiency of checking the necessity of security,the unreasonable amount of security and the disorder of the forms of securities etc.The second part is the analysis of the reasons for the introduction of the insurance security mechanism in the property preservation procedure.From the point of view of necessity,the insurance security mechanism has considerable values to the parties,the courts and the insurance companies.From the point of view of feasibility,the introduction of insurance security procedures into property preservation institution has sufficient space for the implementation.And the system also has enough experiences of the pilot project.Furthermore this kind of mechanism is also in line with the current insurance industry development situation.It is true that there are still some obstacles to the introduction of insurance security.However,the aforementioned obstacles can be designed through the terms of the policy to get rid of and so no.Therefore,the introduction of insurance security to the property preservation procedures is both necessary and feasible.The third part is from the perspective of comparative law on the security system of property preservation institution and China's relevant procedures for comparison and reference.On the property preservation system itself,China and common law system and civil law system settings are not the same.In the case of whether or not to require security,common law system,especially the United States,force the parties to provide securities,they put more emphasis on the possibility of winning the litigation,but they also set a number of exceptions.And the civil law system will require the securities to the judge's discretion,the security needed only to a certain extent,which is the alternative of interpretation.In the form and the amount of securities,the common law system's requirement is mainly to submit the clearly defined form and amount of the referee deposit by the court,the civil law system's is a certain percentage of the amount of preservation,and the specific criteria is of the judge's discretion.In the remedy procedures of the wrong property preservation,because the common law system pays more attention to the beforehand preventing,so the relief process is not as good as the civil law system.And civil law system pays more attention to relief afterwards,so their remedy procedures mainly include the objection to the preservation,the revocation of preservation,the counterappeal of the preservation and the claim compensation procedures.In terms of insurance securities,unlike the institution of the insurance of litigation,insurance securities of property preservation have precedents in Korea.The fourth part is the prediction of the risks that the introduction of insurance security mechanism into the property preservation procedure is likely to face,so as to provide reference and guidance for the further development of the insurance mechanism.The risks of insurance security are mainly the risks of law's application and moral risks.The risk of the law's application includes the differences of the standards to affirm the wrong property preservations in the practice,and the differences in the elements of the liability for damages and the loss of the principle of liability and the differences of calculating the loss of the wrong property preservation.The moral hazard includes the risk that the parties may abuse this litigation right,the dispute amounts rising,and increase of the false litigation.The fifth part is a brief proposal for the issues related to the insurance security mechanism mentioned before.At the legislative level,the relevant legal norms of insurance securities should be improved,and the regulation of insurance companies should be increased.At the practical level,the specific provisions of the litigation property preservation insurance liability insurance should be designed in harmony with our security system.Insurance companies should establish a standardized and professional underwriting team with regular training,and establish a communication mechanism with legal practitioners.In addition,the insurance security as a whole part of the preservation process should be placed in the entire system of security system,the property preservation institution should be improved as a sound system.