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On The Damage Compensation For Property Preservation Mistakes

Posted on:2021-04-10Degree:MasterType:Thesis
Country:ChinaCandidate:Q WangFull Text:PDF
Abstract/Summary:PDF Full Text Request
Property preservation,as a temporary relief measure,plays a very important role in civil litigation procedures,and to some extent can also solve the problem of difficult implementation.However,while this system brings many conveniences,there are also legal risks behind it.When the application for property preservation is wrong,and the respondent suffers property damage because of the application error,it is necessary to consider whether the applicant should be liable for this damage.However,a search of existing laws and regulations and judicial interpretations in China reveals that the wrong provisions for property preservation are very general and do not specify the specific liability issues in detail.At the same time,in judicial practice,there are differences on the criteria for determining whether it constitutes a property preservation error.Therefore,the liability for damage compensation for property preservation application errors has gradually entered the research perspective of scholars,which has attracted the attention of the academic community.In view of this,this article focuses on this research as a research focus,to enrich the connotation of the property preservation system,and to guide the applicant how to use this system to make it better by analyzing the liability for property damage error.This paper will be divided into four parts;the specific content is as follows:The first part introduces typical cases and judicial practice.This section leads to the main differences in judicial practice of property preservation errors in the judicial practice through two cases: Qingdao Yuneng Company v.Zhongjin Industrial Co.,Ltd.and Zhongjin Haoyun Company's property preservation error,and Yixing Construction Company v.Zhang Xin property preservation error Whether "the plaintiff's litigation request is supported by the court" can be a sufficient condition for judging "whether the application for property preservation is wrong" in the subsequent case.The author collected a total of 3390 related cases in the Chinese referee document network in the past five years(2015-2019)and conducted empirical research,and summarized the judgment basis and main points of these cases accordingly.From the data finally obtained,although in practice the courts in various places have divergences on this issue,but nearly 80% of the courts believe that the "plaintiff's litigation request is supported by the court" in the previous case cannot be used as a judgement in the latter case "which constitutes a mistake in property preservation and No ".At the same time,the author made a detailed summary of the ruling grounds and rulings of the courts with different views.The second part analyzes the theoretical controversies and causes of the property preservation error damage compensation problem.This part focuses on the theoretical controversy about the damage compensation for property preservation errors: First,academics have different interpretations of the "application error" stipulated in Article 105 of the Civil Procedure Law.One view simply defines "application error" as an objective behavior,and at the same time specifically lists the types of behavior that belong to "application error".Another view is that “the application has an error” does not only refer to the applicant 's objective wrong application behavior,such an erroneous application behavior should only constitute a necessary condition for the “application has an error”.For the judgment of "the application is wrong",the legal nature of the act and the nature of the liability for damages caused by the wrong property preservation should be defined first.Whether the content that constitutes the requirements should bear the liability for damage compensation.Secondly,academics have different views on how to define the nature of property preservation erroneous damage compensation liability,and they are divided into civil tort liability and civil litigation liability.The former is the majority opinion.Third,different attitudes should be applied to the principle of attribution that should be applied to the damage compensation for property preservation errors.Scholars who hold the "principles of fault liability" and "principles of no fault liability" hold their own opinions.The reason that the principle of fault liability should be applied is that it complies with the provisions of China's Tort Liability Law,and at the same time is conducive to the establishment of the property preservation system.To support the application of the principle of no-fault liability,the interests of property preservation are biased towards the applicant,and the respondent is in a very disadvantaged position in the property preservation.Therefore,the respondent should be given more protection to prevent the applicant from abusing property preservation.The third part,after analyzing the current controversy on this issue in the academic circle,combined with the empirical research on the collected judicial cases,put forward the view of this article-property preservation error damage compensation liability is a civil tort liability and fault liability should be applied Principles,and specific argumentation and analysis of this view.There are two reasons for this liability to be a civil tort liability.First,property preservation is a lawsuit,but property preservation error is not a lawsuit,but a civil act that triggers the entity 's legal relationship,so the liability for damages caused by property preservation error is not Liability for litigation is a civil liability;second,wrong property preservation obviously damages the property rights of the respondent.From the academic and legislative perspectives,it can be concluded that property rights are protected by China 's tort liability law,so the liability belongs to Civil tort liability.There are four reasons why the principle of fault liability should be applied to this civil tort liability: First,it complies with the provisions of China's Tort Liability Law.The principle of no-fault liability is applicable to some special torts,and it must be in the case of clear legal provisions Only applicable in the following,and our country's tort law does not have special provisions on liability for damage compensation for property preservation errors.Second,in line with the historical interpretation of Article 105 of the Civil Procedure Law,Article 105 of the current Civil Procedure Law amends the requirements for liability for damages from the original “applicant 's failure” to “wrong application”,although there is no Clearly define the meaning of "the application has errors",but the information disclosed behind the amendment shows that the property preservation error cannot be simply equated to "the applicant's lost lawsuit".In addition to the "applicant's lost lawsuit" requirement,it should also be Considering the problem of the applicant's subjective fault,all the constituent elements can be combined to determine whether it constitutes a property preservation error.Third,from the perspective of the purpose of setting up the property preservation system,it can be found that the application of the principle of fault liability is more suitable.Due to various reasons,such as their own cognitive ability,knowledge background and evidence collection,the applicant lacks predictability of the final judgment result.If the applicant is overly harsh on the preliminary judgment of the final judgment result,the applicant will refuse to exercise the property preservation.Right,this runs counter to the purpose of the property preservation system.Fourth,the reason for holding the "no-fault liability principle" view is not persuasive.The concept of the property preservation system has already determined the priority of the applicant's rights protection,so in the end,only through the application of the fault liability principle At the same time as the applicant's rights and interests,the rights and interests of the respondent are also taken into consideration,so that the two can reach a balance again.In the fourth part,after determining the nature of the liability for damage compensation for property preservation errors,the establishment and undertaking of the liability is analyzed and demonstrated.The establishment of liability is mainly a discussion of its constituent elements,including: First,the act of harm,there are three manifestations in the liability for damages.First,the premise of preservation is wrong.The premise of property preservation is a legal and reasonable litigation request.The premise of an error is that the applicant 's litigation request lacks legitimacy and reasonableness,such as the applicant 's withdrawal of the lawsuit,the lack of preservation,the applicant 's defeat,etc.Second,the object of the preservation is wrong,and the preservation is limited to the respondent 's property.When the property of the outsider is preserved beyond this range,the preservation object is wrong.Third,the amount of preservation is wrong,with reference to the amount of the subject matter of the lawsuit request,when the amount of preservation exceeds the amount of litigation request,it should be deemed as a preservation error.Second,the result of the damage.There are five common situations in the case of wrong property preservation.They are: freezing the respondent 's account funds,which makes the respondent unable to use the funds;The property is preserved,which makes the respondent unable to perform the contract with others and bear the liability for breach of contract;the preservation of the respondent's stocks,bonds and other securities,so that the respondent cannot sell the losses caused by the fall in the price of the securities;The respondent 's property preservation caused the respondent to miss a specific trading opportunity,resulting in the loss of profits;the storage expenses incurred due to the respondent 's preservation of the preserved property.Third,causality,analyze and explain the causation of the establishment and liability of damage compensation.When determining dual causality,one must verify each one according to the theory of equivalent causality.The factors that establish the causality of the interruption of liability mainly refer to the behavior of the court,and the factor of interruption of the responsibility to bear causality is discussed in the part of liability reduction.Fourth,the fault.There are disputes between subjective standards and objective standards in the determination of faults.This article believes that two doctrines should be integrated.On the basis of adhering to objective standards,that is,the reasonable duty of care of ordinary people,appropriate personal factors of applicants are also considered in specific cases.At the same time,under different damages in the property preservation damage compensation liability,the specific judgment situation of the applicant's subjective fault is discussed.After analyzing the constituent elements of the establishment of the liability for damages,continue to discuss the issue of the responsibility,the main analysis may make the applicant's liability reduced or exempted from two situations: the respondent's fault and the third party's behavior.
Keywords/Search Tags:Property Preservation Error, Penalty for Damage, Tort Liability
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