The Dilemma And The Way Out Of The Problem Of Property Preservation Exceeding The Standard

With China’s emphasis on solving the problem of "difficult enforcement",the relevant provisions on the solution of the problem of "excessive seizure" in the judicial interpretation have gradually been refined,but only the overall awareness of regulating the excessive seizure of preservation and the lack of overall awareness of solving the problem is not enough to solve the current problem of excess preservation in China.At present,there is a lack of research results in the academic circles on the content of excess preservation,not only the problem of vague concepts in doctrine and legislation,but also the lack of unified regulatory methods in the judiciary: the vagueness of legislative concepts will lead to inconsistent understanding of concepts in the judiciary;in practice,local courts will publish judicial documents in a snow-sweeping manner,which also leads to inconsistent standards and handling methods in various places.The lack of uniform identification and treatment methods will lead to the inability to identify excess preservation,nowhere to start,and impossible to solve.The author believes that the problem is first rooted in the problem of excess preservation legislation and the vague concept of justice,and it is difficult to determine what it is;secondly,the fragmented legislation,academic research and fragmented practical documents are too scattered,and there is a lack of research results that systematically sort out and summarize the problems and analyze the overall advantages and disadvantages.This paper aims to sort out the problems existing in the legislation and practice of excess preservation in a categorical and systematic manner on the basis of the theory and legislative concept of excess preservation,and to explore the solution path and remedy path of the current dilemma.The first chapter is the theoretical basis for the study of the problem of excess preservation.Starting from the nature of property preservation,combined with the attributes of the problem of property preservation exceeding the standard.From a macroscopic point of view,over-preservation is a kind of preservation error,and excessive preservation first has the characteristics of preservation error,and the legislative,judicial nature and remedies for interim error are universally applied.The second section clarifies the legislative and judicial concepts of excess preservation in China,and the main method is to sort out the relevant laws and judicial interpretations on property preservation,so as to pave the way for the following article to combine the specific problems of excess preservation in practice.Section 3 conducts a categorical study of property preservation issues,and more clearly defines the occurrence of excess preservation according to the different stages,the attributes of different preservation objects,and the division of excess preservation according to different subjects-courts and parties.Only by clarifying what the problem to be studied is,can the problem be further identified and solved.The second chapter focuses on discovering and sorting out the problems existing in excess preservation at this stage.The first is the problem caused by the unclear concept,and the second is the three situations in practice: the application of the parties,the court ruling,and the over-quota seizure,and the analysis of the causes of the formation of excess preservation is carried out.In view of the above problems,we first pointed out the existing problems in China’s legislation and judiciary,and secondly,the reasons for the formation of the problem of excess preservation are closely related to the omission of China’s property preservation procedures,including the property preservation application procedures corresponding to the application link in the above issues,the trial structure corresponding to the court rulings,in addition to the security procedures and enforcement procedures.Finally,from the perspective of comparative law,the system and regulations related to the problem of extraterritorial preservation are analyzed,which provides certain ideas for China to solve the problem of excess preservation.Chapter III is the solution to the problem of excess preservation.The overall idea is to standardize the concept of legislation and justice,trying to unify the classification and identification standards of "excess",starting from the perspective of the court,and establishing a unified standard setting to standardize and refine the classification of the value of the preserved property,but also to standardize the court’s determination and assessment of the value of the property preservation object;the second section emphasizes the reasonable setting of the applicant’s responsibility,while emphasizing the applicant’s interpretation of the responsibility,it is necessary to improve the property investigation system,and assist the applicant in performing the responsibility of the applicant,although it needs to be emphasized but should not be too strict;the third part echoes the above,The fourth part emphasizes the improvement of the remedies for improving property preservation,including the improvement of the parties’ reconsideration accountability and objection review system,the establishment of a diversified procedural relief system,and the system of compensation for excess preservation.