On The Relief Of The Respondent's Rights And Interests In The Property Preservation Error

"Property preservation" refers to the people's court in the litigation preparation stage or litigation process,should be based on the application or initiative of a party,decide on the subject matter of the dispute or a certain amount of property of the opposing party concerned in connection with the case-under trial or imminent hearing,A temporary judicial enforcement measure to limit its disposition,the purpose is to prevent the other party to malicious concealment,transfer of assets to ensure that the ongoing or the upcoming litigation case ended,the referee instrument after the entry into force can be timely and effective performance."The preservation of procedural law in China is to make the future judgments are timely and effective implementation of the relevant property or behavior of the respondent to make the temporary judicial coercive measures.As for the legal nature of preservation,there are many different views in the academic field.Temporary assistance,auxiliary procedures,coercive measures and so on,but its real purpose should be to ensure the realization of the private rights of the parties(creditors).According to years of judicial practice,we can easily conclude that China's current phase of property preservation measures are almost aways by the parties to apply,the court launched a passive,rare court to take the initiative to make property preservation ruled by the case,This also reflects to a certain extent the importance of property protection measures to protect the rights of applicants.However,for the respondent,although the property preservation measures are short-term,they do not actually dispose of the property of the respondent and do not make final evaluation on the legal relationship of the parties,But after a long period of time,The right to disposition of the property to be preserved is limited,that is,the respondent can not dispose of his property properly within the limit of the time limit of the preservation ruling,Which may adversely affect the interests of the respondent.It is understood from the literal meaning that it is easy for us to know the meaning of the provision and understand the purpose of the system design.However,as long as the applicant loses his claim,his application for preservation of property should be identified as "application error" Is the claimant liable?If not.we should design a series of legal norms to determine whether the property preservation application errors and the application of the wrong standard of compensation,used to crack the practice of property preservation applications were found to be wrong.the respondent suffered losses Request the applicant to bear the liability of compensation,the judge can not be made when the referee of the judicial problems.At present,China's current legal norms have not made any farther detailed provisions on how to determine the liability of the claimant's property when the applicant's property preservation application error causes the claimant's loss.In my opinion,as a common civil case,the general provisions of the Civil Procedure Law of the People's Republic of China may apply to the liability for damage caused by the wrong application of property preservation.At the same time,the nature of such cases is infringing,of course,the relevant provisions of the PRC Tort Liability Act also applies.Judicial practice should also be from the property preservation errors and related compensation issues to determine the point of view,and consider the damage and the causal relationship between the conduct and the defendant's fault to determine the applicant should be compensated.It is necessarry to compprehensively grasp the.factors that determine whether an applicant for property preservation should be liable for the losses caused by the respondent,that is,Whether the applicant is wrong to apply for the preservation of property is the first element,followed by the determination of whether the property preservation measures caused by the damage caused by the respondent has a direct causal relationship,and then determine the specific amount of loss caused by the property preservation measure,and finally examine whether the respondent To prevent the expansion of the scope of the loss of a reasonable duty of care.