Research On The Preservation System Of Civil Action

In order to make up for the lack of the lag of the relief right in the litigation procedure,avoid the further infringement of the legitimate rights and interests of the parties in the long litigation process,and cause irreparable losses to the parties,it is also based on the consideration of maintaining the legal authority and improving the judicial credibility.In 2012,China added the behavior preservation system in the civil procedure law,which filled the previous legislative gap.However,there are still some problems,such as simple legislation,vague concept,and unspecific program design.Therefore,it is of great theoretical and practical significance to study the civil act preservation system in China.Through sorting out and analyzing various theories about the concept in the current academic circles,and holds that the act preservation system is a temporary relief measure for the obligee before the final judgment of the court to prevent the perpetrator from causing irreparable damage to the obligee The nature of litigation procedure and execution procedure.Then,by summarizing the characteristics of behavior preservation and differentiating with related concepts,we can define the connotation of behavior preservation more clearly and accurately.This paper studies and draws lessons from the false disposition system of civil law countries and the intermediate injunction system of common law countries,analyzes the applicable conditions,review methods,guarantee procedures and relief ways of the intermediate injunction and the false disposition system,and puts forward some enlightenment for improving the behavior preservation system of our country.Through the analysis of the relevant provisions in the field of general law and special law,as well as sorting out a large number of judicial cases on behavior preservation in the network of judicial documents,this paper sums up the legislative and judicial status of the system;on the basis of the research on the status quo of the system,it sums up the deficiencies in six aspects: the starting subject,the court of jurisdiction,the way of review,the standard of identification,the rules of guarantee and the way of relief.Finally,it puts forward reasonable suggestions.This paper holds that the starting subject of behavior preservation should abandon the mode of court starting according to its authority,insist on starting according to the application of the parties,and increase the detailed explanation obligation of the court in case of emergency;increase the jurisdiction court of the place where the "act or omission of the respondent" is most closely related to behavior preservation;in the way of review,take the mode of antithesis as the principle,and extend the trial period We should learn from the legislative and judicial experience in the field of intellectual property,refine the review conditions of behavior preservation,including clear factual basis and legal basis,establish the relative standard of "irreparable damage",balance the interests of both parties and the public interest,adhere to the principle of providing guarantee,and increase the form of guarantee.The applicability of counter guarantee is discussed according to the specific types of cases;the court of first instance is the main body of review,but the collegial panel or the chief judge should be replaced.