The Damage Of Wrongfully Made Application Of Property Preservation

In the context of my country’s establishment of a new development pattern with the domestic cycle as the main body and the mutual promotion of the domestic and international double cycles,as social and economic activities become more active,the number of cases of compensation for damages related to property preservation is frequent.As a widely used compulsory measure,the preservation system plays a very important role in today’s civil litigation.After searching the current legal norms and relevant judicial interpretations of the country,it finds that the legal norms on the issue are still less specific and obscure,or doesn’t have a detailed regulation of liability.At the same time,there are different opinions on the specific judging standards of property preservation in judicial practices.Hence,the compensation liability of property preservation application faults attracts more and more attention from academic community and enter the research field of scholars.Thus,the paper emphasizes on the issue and intends to enrich the contents of the system through relevant researches of the compensation liability of property preservation application faults,which thereby makes it greater role in judicial practices.The paper is divided into three parts:In first part,it introduces relevant problems of property preservation application faults.This part intents to conclude the main problems of the infringement cases of property preservation application faults in judicial practices,that is damage compensation of property preservation application faults.If accounting the compensation liability of infringer,it must first be determined that his applicant behavior is false.However,the affirmation of “applicant fault” is controversial in juridical practice.Therefore,it needs to analyze the problem in two aspects,including how to affirm faults of the court and how to determine the compensation scope after affirmation.In second part,it gives a jurist analysis of the damage compensation of property preservation application faults.This part analyzes the theoretical disputes existing in the application for property preservation wrong damage compensation in combination with the cases cited.First of all,starting from the liability basis of property preservation error compensation,this behavior is defined by analyzing its civil nature and the basis of claim rights.Secondly,from the perspective of balancing the rights and obligations of both parties,the principle of liability for fault and the principle of no-fault liability are differentiated.Thirdly,on the basis of clarifying the nature of the liability for damages caused by property preservation errors,the three constituent elements of property preservation,such as the wrong result,causal error,and subjective fault,are discussed.This part also analyzes the intersection between academic theory and judicial practices.One is that there is no unclear regulation of the “application fault” and“the liability” in existing Civil Procedure Law.The other is that the inadequate balance between the applicant and respondent’s rights and obligations result in the many different views in theory and practices.The third part offers a proposal of the relevant of above application faults of property preservation.In the perspective of defects of legislation and non-uniform judicial decision,this part gives some suggestions on tort liability legislation of property preservation application faults and ex post relief measures basing on the paper’s discussion.It intends to plug the vulnerability of property preservation application faults from the source,through which it thereby reduces the number of the cases.Meanwhile,the more perfect damage compensation system of property preservation application fault will more fairly protect the applicant and the respondent’s rights and interest.