Research On The Problem Of Guarantee Of Litigation Property Preservation In China

As an irrevocable credit guarantee,litigation property preservation guarantee is one of the ways of litigation property preservation guarantee stipulated by the civil procedure law.It is the contractual obligation performed by the preservation guarantee agency.Compared with the traditional litigation property preservation guarantee,litigation property preservation guarantee has significant advantages such as low cost,fast delivery,high reputation and judicial approval.Whether Article 16 of the company law is a mandatory or effective norm,the determination of the effect of ultra vires Security Act,and the determination standard of the applicant’s good faith have puzzled the theoretical and practical circles for a long time,and also brought difficulties to the determination of the effect of litigation property preservation guarantee.The nine people’s minutes issued by the Supreme People’s court in 2019 not only reflects the fact that the people’s court has adopted.The theory of "internal restriction" turns to the theory of "representative right restriction",and fully retains the exception of commercial externalism.In principle,the guarantee of litigation property preservation issued by the civil subject whose business is external guarantee is presumed to be effective.There are still many problems in the guarantee of litigation property preservation in China.Due to the different requirements of the people’s courts for the form of the guarantee and the inconsistent and dynamic changes in the catalogue of the guarantee institutions of litigation property,it is difficult for the people’s court to review the guarantee issued in different places,and many methods restrict the access of the guarantee issued by the guarantee institutions in different places.For a long time,there is a lack of supervision over the guarantee companies engaging in the guarantee business of litigation property preservation,and the total amount of external guarantee of some guarantee companies exceeds their compensation ability.In many places,the guarantee companies lose their solvency,even run away from the road and go bankrupt,which has an impact on the judicial activities of litigation property preservation.The cost of issuing the property preservation bond is low,which reduces the cost of malicious preservation.The calculation methods of the amount of preservation damage are different from each other,so it is necessary to establish a unified calculation standard.In the dispute of preservation damage liability,the distribution of the burden of proof is unreasonable,and it is difficult to identify malicious preservation and preservation errors,which leads to the low winning rate of the respondent’s claim for preservation damage compensation after the occurrence of preservation errors.Because there is no correct distinction between guarantee legal relationship and insurance contract relationship,insurance companies often use the standard terms of insurance contract to avoid guarantee liability.Establish a cross regional linkage mechanism between the people’s court and the security institution,develop the connection between the electronic guarantee and the court system,so as to facilitate the preservation of the parties in different places,establish the access and exit system of the security institution of litigation property preservation,realize the dynamic management of the security institution,prevent the systematic risk of the loss of the security ability of the security institution,and reduce the subjective identification target of malicious preservation.To be precise,the adjustment of the identification rules of preservation error and damage compensation will help the respondent get effective judicial relief after suffering from the property preservation damage,construct the rule system of the litigation property preservation guarantee,and further infer that the litigation property preservation guarantee business will develop in a more standardized and reasonable direction.