A Research Of The Compensation For Wrongful Property Preservation Application

Part one is about general description of the property preservation system.Firstly,after explaining the concept of our nation’s property preservation system,the author believes that the property preservation system is a system including measures as seizure,attachment and freezing,a system applied by parties in action or utilized by local courts directly in order to restrict other parties in case conducting certain assets,as well as to protect legal rights of all parties,and to make sure that court decision could be conducted successfully in the pre-litigation cases or before the execution condition achieved.It is a bond connecting trial proceeding with implementations of the program.Also it is an important part of the civil action.After above analysis,this section begins to investigate the history of the property preservation system.It comes out that the systems originated in ancient Rome,arouse in the eighteenth and nineteenth centuries,and continues to develop at the present stage.Besides,this part carries out a comparative study of the property preservation system,including sequestration and provisional seizure in Continental Law System,as well as temporary relief measures in Common Law system.Meanwhile,the traits of remedy system for the property preservation system are mentioned in the same section,namely,temporality,urgency and subsidiary.Finally,this section gives a general description about remedy system for the property preservation system.Its main content contains opposition procedure,cancellation procedure and compensation procedure,while compensation procedure for the losses incurred from the property preservation is the focus of research.Part two makes an analysis for types of wrongful property preservation applications.The author thinks that it could be divided into four parts as follows:(a)the premises for property preservation application are wrong.The first fault is that the applicant has no reason to apply for property preservation.That is to say,the applicant must clarify the necessity to take the case to preserve the property,and list the content for payment.If it was not necessary but still the court takes the property preservation measures,it could be defined as wrongful property preservation.The second circumstance is that related parties do not file a lawsuit within legislated time.(b)The wrong scope of property preservation applications.The range of property preservation should be limited to the boundary of claim.And there are different viewpoints for theorists,including "limited to win a lawsuit","limited to the range of request","different preservations for different conditions".The author believes that the property preservation application in essence is a civil request,"different preservations for different conditions" theory mostly adjust to the demand of the fault liability in Tort Law,and it is more likely to realize the purposes of the property preservation system;(c)the failure of objects for preservation.It is totally mistaken to take the third party’s property rights outsides of the case as the objects;(d)the applicant loses the case.The author believes that under the situation when the applicant enjoys partial victory,it should be judged accordingly case-by-case,based on the principle of reasonable care and balance of interests.Part three discusses the specific identification of wrongful property preservation.The author thinks that the compensation for damage of wrongful property preservation,in principle,is a civil tort liability,which is consisted by the fact of damage,illegal acts,the causality between damage and illegal acts,and subjective faults.What is more,the author also expounds the inner value of every constituent elements and the identification in the litigation of compensate for wrongful property preservation application.In general,it should persist in judging according to principles identified,on a foundation of specific facts and the evidence of the case.Part four explores the remedy of compensations for wrongful property preservation applications.First of all,this section analyzes the existing system of property preservation legislation,and put forward with some solutions:1.the provisions of the period for applying are imperfect.The author suggests that it should be settled before the conditions for implement have been fulfilled;2.The subject of program for startup is inappropriate.The author thinks that the party should present the request for property preservation by himself and should be responsible for any consequence that may cause,in accord with the principle of act of party.It is designed to realize the justice of civil proceedings;3.The provisions of jurisdiction are unreasonable.The author believes that it should be administered by the judging court in theory.This case could be transferred to local court where the subject matter locates if necessary.The right of jurisdiction by court is not restricted by the contract for contentious jurisdiction or clauses of arbitration;4.The design of guarantee system is unscientific.The author considers that whether it is needful for property preservation to be decided by judgers based on different circumstances;5.The remedy of compensation for wrongful property preservation application is not adequate.The author believes that it is urgent to set up an effective remedy system for wrongful property preservation application.That is,considering the suit of compensation for wrongful property preservation application as a separate cause of action,in accordance with the order of the program.It should be started by partied in action rather than activated by court,and also be under administration of judging court.If possible,it could be handed over to the collegial panel for final judgment.In addition,the author considers guarantor’s liability of the property preservation,and believes that guarantors and the applicants should be responsible for contributory infringement jointly.