| Although China’s civil procedure law has established a civil preservation system,there are problems of different examination standards of conduct preservation and inaccurate application of preservation measures in prconductice.The main reasons are that the standards for the review of conduct preservation in various fields are not unified and the binding provisions on property preservation and conduct preservation lead to inconsistent functional purposes and applicable standards.The non-uniform review standard of conduct preservation is mainly reflected in two aspects:the possibility of success on the merits and the balance of hardship between both parties.The reasons for the different examination standards of conduct preservation lie in three aspects:the unclear matters to be proved in the application for conduct preservation,the ultra short trial time of 48 hours and the risk of miscarriage of justice and the contradiction between the "trial of this case"charconducteristics of conduct preservation and efficiency orientation.Propose solutions through cause analysis and clarify the review standard of preservation of civil conducts.The review standard of preservation in litigation is "the respondent has an conduct that makes it difficult to enforce the judgment" or "wrongfulness of the conduct+causing other damage to others".The three conductors of the examination standard of pre-litigation preservation are"emergency+wrongfulness of conduct+irreparable damage";adopting balancing approach,the fconductors stipulated in the legislation should be possessed and the evidentiary function between the elements can complement each other.In the case of ultra short trial time and the risk of misjudgment,the trial is regarded as the trial procedure of conduct preservation.The problem of inaccurate application of preservation measures can be solved in combination with the direction and purpose interpretation of preservation contents.Finally,as a remedy mechanism,guarantee can make up for the damage caused by conduct preservation errors and system abuse. |
