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Case Study Of Property Preservation Damage Responsibilities Dissension Between Yixin Company And Zhang Xin

Posted on:2022-01-25Degree:MasterType:Thesis
Country:ChinaCandidate:D Q ChenFull Text:PDF
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Although China's "Civil Procedure Law" stipulates that the parties have the right to claim damages in case of property preservation errors,the provisions on the right relief of property preservation errors are too macro,and there are no clear and specific explanations and provisions on the types and identification standards of "property preservation errors".This kind of principled norm can't guide the behavior of the parties,and can't provide the basis for the judge to decide the case,which makes it difficult to unify the views of judicial practice.At the same time,the academic circles have different opinions on how to identify the types,standards and factors of property preservation errors in property preservation liability disputes.In recent years,the number of property preservation damage liability disputes is increasing year by year,and there are many judicial precedents with opposite views.Therefore,the Supreme People's court included the case in the bulletin of 2018,and determined that the litigation results of previous cases should not be used as the only basis to determine whether there are preservation errors,so as to provide reference for local courts at all levels.Although the Supreme People's court has published the bulletin cases,it only gives an exclusive standard for the identification of property preservation errors.Due to the different circumstances of the cases and the cognitive differences of judges,it is still difficult to unify the views of judicial judgment.Therefore,the identification of property preservation errors still needs to be improved by legislation.In order to determine whether there are preservation errors,it is necessary to classify property preservation,and comprehensively consider a variety of factors to judge,such as whether the claim of the previous case is supported,whether the applicant's claim is legitimate and reasonable,whether the necessity of taking preservation measures and preservation methods have fulfilled the reasonable duty of prudence,whether the amount of application for preservation is higher than the amount of claim,and whether preservation is reasonable Such as whether it is wrong,whether the protective measures are removed in time according to the procedure,etc.In addition,there is also a lack of relevant legislation for the determination standard of loss.The most controversial issue in academic circles and judicial practice is whether indirect loss should be supported.In addition,in judicial practice,a unified determination standard has been formed for the determination of loss.
Keywords/Search Tags:Property preservation, Application error, Claims
PDF Full Text Request
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