Research On The Compensation For Wrongly Applying For Property Preservation

Property preservation system,as a temporary relief measure for creditors to ensure the implementation of expected creditor’s rights,is of great positive significance to protect the interests of creditors and solve the problem of difficult implementation.At present,in judicial practice,the application of property preservation measures by parties or courts is becoming more and more common,Wrong property preservation leads to the damage of the rights and interests of the safeguarded.The property preservation error can be divided into two parts: the property preservation error caused by the court’s authority and the property preservation error caused by the applicant’s application.This paper focuses on the property preservation error caused by the applicant’s application.The first part studies and analyzes two representative cases in judicial practice,It is found that the legal provisions on the application for property preservation in China are only limited to the rough provision of Article 105 of the civil procedure law that "if there is a mistake in the application,the applicant shall compensate the loss suffered by the respondent due to preservation",This leads to the following four problems: first,in judicial practice,there are different understandings of the imputation principle of "the application is wrong",that is,the standard of determining the liability for damages caused by the application for property preservation error is not unified,and there is a big dispute whether the court should apply the principle of fault liability or the principle of no fault liability;Second,under the application of the principle of fault liability as the principle of imputation,the court has a dispute on the understanding and determination of "fault",that is,what standard should be used to determine "existing fault";Third,in practice,the court has different opinions on the nature of the liability of the guarantor of property preservation;Fourth,in practice,there is no uniform standard for determining the scope of compensation for property preservation errors.In view of the above-mentioned problems in judicial practice,the second part of this paper makes an in-depth analysis and Research on the relevant issues in combination with the relevant theoretical views,legal principles and foreign experience.Firstly,this paper compares the application of fault liability principle and the application of no fault liability principle,and analyzes them from the perspective of interest measurement and combined with the experience of foreign countries or regions.It emphasizes that the single liability principle can not avoid the defects brought by their respective application,And it is difficult to effectively balance the risks and interests between the two sides;Secondly,it emphasizes that the identification of "fault" is the core issue of identifying the application for property preservation error,but the current standard is unclear,and it is difficult to accurately identify "fault" only based on the current "subjective fault theory" or "objective fault theory";Thirdly,based on the different views on the legal nature of property preservation guarantee,it is more reasonable to further prove that whether the guarantor of property preservation should bear joint and several liability for joint infringement should be considered from the basic nature of property preservation guarantee;Finally,the paper analyzes the key factors affecting the scope of damages,emphasizes that the principle of fairness is crucial to accurately determine the scope of damages,and at the same time,it can learn from foreign experience to clarify the judgment standard of the scope of damages.In the third part of this paper,the author puts forward some countermeasures and suggestions to solve the problem of entity imputation of tort disputes caused by property preservation errors.Specifically,it includes: first,it classifies the cases of applying for property preservation errors and applies different imputation principles to different types;Secondly,the understanding of "fault" should be based on the objective factors to identify the subjective fault,and the duty of care of ordinary people should be taken as the benchmark to measure the fault or not.At the same time,the objective factors of "fault" should be identified on the premise of applying the principle of attribution;Third,the guarantor of property preservation should not bear the liability of joint tort as a joint tortfeasor,but should bear the liability of guarantee to the extent of the promise when providing guarantee;Fourth,it clarifies the five standards for the determination of the scope of damages and makes specific classification to further accurately determine the specific scope of damages.Through the analysis and improvement of the entity imputation of the wrong infringement dispute in the application for property preservation,the fourth part of this paper further extends the thinking and analysis of the procedural problems in the application for property preservation wrong infringement,This paper mainly focuses on the two procedural issues: the trial procedure of the applicant’s responsibility and the court’s responsibility in the case of overlapping,and the litigation form of the application for the wrong infringement of property preservation.It also puts forward the views and suggestions that the same trial procedure should be adopted to deal with the overlapping liability,and that the other case should be accepted and the limited one trial method should be adopted to try such cases,It tries to provide some reference for improving the litigation procedure of applying for property preservation wrong infringement.