Research On The Liability Of Error Compensation In Preservation Application

Justice is the last line of defense to safeguard social fairness and justice.Especially in the modern society where private remedy is forbidden by law,the function of justice is especially prominent.With the development of economy and the rules of law,people are having a stronger and stronger awareness of using legal means to protect their rights and interests.As a temporary relief measures,the preservation system has been used more and more in practice after many years of improvement and development.However,if the system is abused or misapplied,it will not only affect the legitimacy of the lawsuit,cause a waste of judicial resources,but also cause substantial damage to the judicial authority and the interests of the preserved.At present,the law and regulations on the damage compensation for preservation errors still need to be improved and the understanding of this varies with individual cases in academics and practice.So it is necessary to comb,analyze and demonstrate in detail on the basis of current provisions and practice.We are looking forward to finding a suitable way to solve the practical problem which is exactly the original intention of this article.The main body of this article will be divided into three chapters.The first chapter puts forward the problems caused by the error of application for preservation.The author leads in the main topic of this article by a true trial case about preservation application errors.Facing with the same facts of the case,the plaintiff thinks that the principle of no-fault liability should be adopted in the error of application for preservation.However,the defendant argued that the principle of fault should be applied and pointed out that he had fully done his duty of care and awareness,so he was exempt from liability.In the end,the first instance judge accepted the defendant’s opinion and made a decision which was supported by the final judgement.According to this case,the author concludes the principle of liability,the standard of judgement and the scope of compensation.The second chapter focuses on the nature and the principle of liability.The main purpose is to solve the argument about it in practice,law and theory.Starting from the current provisions,this paper makes a comparative analysis of the nature of liability in the continental law system and the common law system.The emphasis is on the analysis of the theory of fault liability,the no-fault liability and the theory of mixed liability.After the analysis and reasoning,the author concludes that the adoption of the principle of fault liability is more in line with the current legal system and can minimize the institutional cost and maximize the security function.The third chapter deals with the determination standard and scope of compensation for "error in application".On the basis of the analysis in the second chapter,it is proposed to adopt the objective criteria in specifically identifying the fault in "error in application".In the judicial practice,we can take the advantages of adopting objective criteria,the specific circumstances,the determination of the scope of compensation and the calculation of the specific amount,etc.into consideration.Based on the current legislative practice,this paper analyzes and solves the practical problems,and hopes to provide some benefits for the related legislation in the future.