| In the newly revised Civil Procedural Law, behavior be explicitly included in the scope of civil preservation for the first time, which formally established the act preservation and property preservation in the equal legal status in civil procedure. Act preservation refers to the respondent’s behavior or other reasons, which will make the judgment can’t perform or difficult to realize in the future, or other damages, so that the people’s court adjudges compulsory measures that respondent makes a certain behavior or not according to the applicant’s application before the lawsuit or litigation process. It makes the act preservation system itself tends to protect the interests of the applicant and the respondent’s interests are often ignored that the object of act preservation is not to be turned, the respondent’s program participation is low, coupled with the applicant’s right remedy measures is incomplete. In a short, this article is about how to balance the parties of act preservation.The first part of the article introduces the legislative status quo of act preservation and the unbalanced interests problem of act preservation parties in legislation and judicial practice, Including the abuse of act preservation and the absence of the respondent’s program participation.The second part of the article is analyzing the reasons of unbalanced interests between act preservation parties. First, the object of act preservation can’t to be turned. Second, the respondent program participation is low, so that respondent’s interests usually be ignored. Third, the act preservation not provides the application condition, either application condition regulation is very simple, which makes the act preservation application threshold is very low. Fourth, the remedy measures of act preservation is not perfect, so that the respondent often suffers a loss, which is usually not to be fully compensated.The third part of the article is reviewing and appraising related to the extra-territorial system. In the common law system such as Germany and Japan,it is mainly showed in the injunction system.in the civil law system such as America and England, it is mainly showed in the einstwelivergung.The fourth part of the article is aiming at the problem of unbalanced interests between act preservation parties to perfect our act preservation in the parties benefit balance mechanism, on the basis of draw lessons from foreign method related system in other country. The suggests Include three parties. There are stricting application conditions, strengthening the respondent program participation and complete relief method of act preservation. |
