Property Preservation Guaranty To Guarantee Real Right Conflict And Countermeasures Research Problem

Property preservation guaranty refers the interested person or litigant to request the court to preserve the property of the other party before filing a lawsuit or prosecution process, to prevent application errors causing losses to the other party, the applicant provided guaranty to the Court at the same time. Property preservation guaranty is an important part of civil legislation in our country, the role played in our trial practice becoming increasingly prominent. And real rights for security have the nature of guarantee, which protect the legitimate rights and interests of the creditors can be achieved.Because the same guarantee in nature, one is the guarantee in civil procedure, the other is the guarantee of the civil substantive law, the conflict often occurs because of the same object of the two kinds of guarantees in the judicial practice, namely the object which has been provided property preservation guaranty is set the real rights for security again or the property that the real rights for security burden on is then provided security for property preservation, resulting in difficulties to judicial practice, while is not conducive to the protection of the litigant and creditors’ legitimate rights, therefore, this article selects the conflict of the property preservation guaranty and guarantee real right as the research object. This paper firstly analyses the conflict of the property preservation guaranty and guarantee real right in theory, then through the author’s own internship experience expounds the court’s specific measures for property preservation guaranty in the Qingdao, analysing their shortcoming and the impact that the conflict between property preservation guaranty and real rights for security to our country reality environment, finally, aiming at the conflict of property preservation guaranty and real rights for security puts forward the corresponding solutions.Besides preface and conclusion, this article consists of four parts.The first part describes the basic concepts, focusing on the meaning of property preservation guaranty and guarantee real right as well as differences of basic theoretical issues in the four aspects of nature, the subject and the legal relationship between the subject and the subject, the purpose and manner of guaranty, risk and so on.The second part theoretically analyzes the specific performance of the conflict between property preservation guaranty and real rights for security, including two levels that the object which has been provided property preservation guaranty is set the real rights for security again or the property that the real rights for security burden on is then provided security for property preservation.The third part takes the method of empirical research, and selecting the Qingdao court’s judicial practice for property preservation guarantee as the material presents relevant perspectives and further from the macro-level analyses the impact of the conflict of property preservation guaranty and the real rights for security on the environment.The fourth part on the basis of a combination of the second and third part, drawing on some of the experience of foreign countries, raises some personal insights pointing at the conflict of property preservation guaranty and the real rights for security.