Research On The Relief System Of Property Preservationg In Civil Action

In form,the property preservation relief system is a system cluster composed of various relief systems in the civil relief system.However,from the perspective of the overall connotation,nature and function of the system,the civil litigation property preservation relief system is different from the traditional civil relief system.It requires that the internal specific relief procedures should be coordinated,unified and integrated within the overall framework of the system operation,so as to meet the logic of the system operation and the compatibility of the practical needs of judicial work.The system takes procedural protection,litigation efficiency and substantive justice as its value orientation,and adheres to the principles of protecting rights and reducing damages,careful review and equal protection,and balancing justice and efficiency,so as to provide theoretical guidance and basis for the continuous improvement of the system.On the basis of the civil Litigation Law and its interpretation,Preservation Provisions has perfected and sorted out the application of various procedures for property preservation relief,but its limitations determine that there are still many deficiencies in the overall operation of the system: In the reconsideration of the preservation adjudication,the original department and the original judge are responsible for the review,which leads to the virtual cancellation of procedures,the overlapping relief channels caused by the application for reconsideration and the filing of objections by the outsiders,the lack of the right to cancel preservation based on the application by the outsiders,the mixed use of procedural functions caused by both the procedural and substantive right relief undertaken by the execution of objections,and the fault standards in the liability of damages are unclear in legislation and inconsistent in practice For a long time,whether out of the needs of judicial justice or judicial efficiency,it is urgent to reform the system setting of preservation relief.Through the investigation of the comparative law of countries outside the region,it can be found that all countries attach great importance to the right of reremedy for reconsideration of preservation adjudication and the trial procedure.For the different nature of the right,its relief channels are clear.Although Germany and Japan adopt no-fault liability and fault liability respectively in the imputation of damages for preservation,they share the same purpose in the system design: to fully balance and protect the rights and interests of all parties.In addition,Germany and France do not reject the case-oriented judgment of provisional relief procedures,but regard it as a measure to improve judicial efficiency and implement it,which is also in line with our current judicial goals of "promoting modulation by preserving" and "promoting enforcement by preserving".According to the practical needs of our country,It is necessary to reshape the hearing procedure of the reconsideration of the preservation order,set up the protest procedure of the reconsideration of the preservation order,improve the relevant subject’s right to know and the right to cancel the preservation dissolution system,distinguish the relief channels of procedural rights and substantive rights,determine the principle of no-fault liability for civil compensation for preservation damage and supplement the principle of fault liability in the state compensation,etc.To realize the perfection of the individual procedure and the whole level of the property preservation relief system.