Research On The Property Preservation Errors And Damages According To The Application

Property preservation means' that,in order to ensure that a future effective judgment can be executed or to avoid property losses,the People's Court shall,before or after an interested party brings an action,take compulsory measures to restrict the disposal of the property,the subject matter in dispute or other property related to the case.The property preservation system has the characteristics of temporality,urgency,subordination and secrecy.Through the universal application of the property preservation system in civil litigation,it not only safeguards the legitimate rights and interests of the applicant,balances the interests of both parties in the lawsuit,but also maintains the authority and seriousness of the law.With the progress of our country legal system construction and improvement of citizens1 legal consciousness,property preservation system has been widely used in civil lawsuit.By searching the field of "Property preservation" through the Chinese referee document Network,we can find 105 thousand pieces of such lawsuit in 2015,188 thousand pieces in 2016,and 257 thousand pieces in 2017.The number of cases involving property preservation has been increasing year by year.To a certain extent,the property preservation system safeguards the legitimate rights and interests of the applicant and alleviates the problem of" difficult implementation".However,it is also necessary to see that while bringing convenience and guarantee for judicial,litigation and execution,the property preservation system may also cause damage to the rights and interests of the respondent due to the error in applying for property preservation.In recent years,there have been many cases of disputes over compensation liability for property preservation errors,including pre-litigation applications and in-litigation applications.Despite the frequent occurrence of such cases,it is found that there are still many problems in case judgment through combing and analyzing the effective judgment,mainly focusing on how to identify the error of applying for property preservation and how to determine the amount of damages.This paper mainly discusses this problem.The error of applying for property preservation can be divided into three types:the premise error of applying for property preservation,error in applying for property preservation and wrong amount of property preservation application.The premise error includes the failure of the property preservation applicant to bring a lawsuit or apply for arbitration within the legal period before the lawsuit,the failure of the property preservation applicant to accept or withdraw the lawsuit before the lawsuit,and the rejection of the lawsuit request by the court after the lawsuit.Although the error of applying for property preservation application is so divided,it does not mean that it is certain to apply for property preservation error even if it conforms to this type.It still needs to make case analysis and judgment according to specific cases.The core problem of error in applying for property preservation lies in the application of the imputation principles.As for whether to apply the principle of fault liability or no-fault liability principle,the point of view of judicial practice and theoretical research is not unified.The Civil Procedure Law only has principle provisions,and the Tort Liability Act also doesn't clarify exactly what kind of imputation principle can apply to it.Thus,disputes can't^be well solved.Judging from the effective judgment,the principle of applying fault liability has become the mainstream of judicial practice.As a general infringement,the error in applying for property preservation shall be comprehensively investigated from four aspects,namely,the illegality,the fact of damage,the causal relationship and the applicant's subjective fault,so as to make an accurate judgment.On the determination of damages,it cannot be lumped together but should be comprehensively considered from the types of error in applying for property preservation,the nature of the preserved subject matter and the stop-loss obligations of the preserved.Compensation should be paid according to accurate calculation of the amount of loss,If the amount cannot be accurately calculated,then compensation should be paid from the perspective of fairness so as to better protect the interests of the people preserved,ensuring the balance of interests.The premise and source of applying for property preservation error compensation dispute is applying for property preservation errors,how to prevent or reduce errors,and how to reduce the damage to property of the respondent.This paper makes some thinking:from the origin of applying for property preservation,the court should increase the investigation of application for property preservation,and the protection of the interests of the people preserved appropriately,and also increase preserved people's participation in the property preservation.In the process of the implementation of property preservation,the supervision responsibility of the court on the implementation of property preservation is strengthened,and the scope of the court to remove property preservation according to its functions and powers is expanded.The court can't make a ruling only when the applicant or the security person releases the application of property preservation.The right relief way of the protected person shall be widened to ensure the applicant's right of application for reconsideration and right of lawsuit.In the principle of determining the liability for the error of applying for property preservation,it needs to be clarified and unified from the perspective of legal norms.