Why apply for property preservation? With the reform and opening up and the development of socialist market economy, in recent years, the legal awareness of the parties to safeguard their legitimate and legitimate economic interests through litigation has gradually improved. However, after winning the case, many parties are faced with the acts of concealment, transfer, sale and even malicious destruction of property taken by the other party, resulting in their own interests not being truly realized, and they can't get money after winning the case. In view of this situation, it is necessary for the parties to take the initiative to apply to the court for property preservation measures. Only when the parties take the initiative to apply for property preservation can they effectively prevent the other party from taking malicious actions and make future judgments unenforceable, thus achieving the litigation purpose of protecting their own substantive rights and interests.
According to the provisions of China's civil law, the parties applying for property preservation need to provide guarantees to the court. Otherwise, the application of the party concerned will be rejected. In judicial practice, there are three main ways of litigation property preservation and guarantee recognized by the court:
One is material security. According to the general requirements, the value of the collateral provided should be equivalent to the amount applied for preservation. The physical guarantee must be real estate or specific movable property, and the collateral provided should be mortgaged or pledged.
The second is cash guarantee, which generally requires the provision of currency not less than 30% of the amount applied for preservation.
Third, a qualified third party provides credit guarantee.
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Proceedings for property preservation:
According to the provisions of Articles 100 and1kloc-0/of the Civil Procedure Law, property preservation can be divided into property preservation in litigation and property preservation before litigation. In addition, the pre-litigation behavior preservation system is also stipulated in the intellectual property law.
In a lawsuit
1. The concept of property preservation in litigation
Property preservation in litigation refers to the compulsory measures taken by the people's court to restrict the disposition of the parties' property or the disputed subject matter after accepting the case and before making a judgment.
It takes several months or even longer for the people's court to accept civil cases before making an effective judgment. After the court decision takes effect, if the debtor fails to perform his obligations, it will take some time for the creditor to apply for enforcement. In this process, if the debtor conceals, transfers or squanders disputed property or property used for execution afterwards, it will not only intensify the contradictions between the parties, but also make the effective judgment unenforceable. Some controversial items, such as fruits and aquatic products, are perishable and must be disposed of in time to save prices and reduce the losses of the parties.
2. Applicable conditions of property preservation in litigation
Property preservation in litigation shall meet the following conditions:
First, a lawsuit against disputed property that requires property preservation must be a lawsuit of payment, that is, the right of claim in this case has the content of property payment.
Second, the future effective judgment cannot be executed or is difficult to execute due to subjective and objective factors. Subjective factors include: the parties have the behavior of transferring, destroying or hiding property or may take such behavior; The objective factor is that the subject matter of litigation is perishable, and if preservation measures are not taken in time, it will cause great losses.
Third, property preservation in litigation occurs after the civil case is accepted and before the court makes an effective judgment. In the procedure of first instance or second instance, if the case has not been concluded, you may apply for property preservation. If the court decision has come into effect, the parties may apply for enforcement, but may not apply for property preservation.
Fourth, property preservation in litigation should generally be submitted by the parties in writing. If the parties do not apply, the people's court may also order the adoption of property preservation measures when necessary. However, people's courts rarely make rulings on property preservation ex officio, because according to the provisions of the State Compensation Law, if people's courts make mistakes in taking property preservation ex officio or executing it first, they shall be liable for compensation according to law.
Fifth, the people's court may order the parties to provide a guarantee. The people's court may, according to the application of the applicant, order the applicant to provide a guarantee before taking property preservation measures in litigation. The amount of guarantee provided shall be equivalent to the amount requested for preservation. If the applicant fails to provide a guarantee, the people's court may reject the application. If the property preservation error in the lawsuit causes losses to the respondent, the respondent can directly obtain compensation from the property guaranteed by the applicant.
Before litigation
Pre-litigation property preservation means that in an emergency, if the court does not take property preservation measures immediately, the legitimate rights and interests of interested parties will be irretrievably damaged, so the law gives interested parties the right to apply to the people's court for property preservation measures before prosecution.
Pre-litigation property preservation is an emergency preservation measure to protect interested parties from irreparable losses. For example, when the two parties signed the purchase and sale contract, the buyer paid the supplier an advance payment of RMB 6,543,800+0.5 million as agreed, and afterwards it was found that the supplier had committed fraud and could not perform the contract at all, and the paid payment may be transferred. If compulsory preservation measures are not taken in time to control it, it will inevitably cause irreparable losses. Because it will take some time from the time when the creditor brings a lawsuit to the court, it is necessary for the law to give the interested party the right to request the court to preserve the property that may be transferred in time in an emergency.
According to Article 10 1 of the Civil Procedure Law, the applicable conditions for property preservation before litigation are:
1. The application for pre-litigation property preservation must have the content of payment, that is, the applicant's future litigation request has the content of property payment.
2. In case of emergency, failure to take corresponding preservation measures immediately may cause irreparable losses to the legitimate rights and interests of the applicant.
3. The interested party applies for pre-litigation property preservation. Interested parties, that is, people who have disputes with the respondent or think that their rights have been infringed by the respondent.
4. The applicant for pre-litigation property preservation must provide guarantee. If the applicant fails to provide a guarantee, the people's court shall reject the application for property preservation filed by the applicant before the prosecution.
According to the provisions of the Civil Procedure Law and the Supreme Court's Opinions on the Application of the Civil Procedure Law, property preservation before litigation and property preservation during litigation must pay preservation fees, which shall be implemented with reference to the Measures for Litigation Fees of People's Courts.
The applicant for pre-litigation property preservation, that is, the interested party, must bring a lawsuit or arbitration within 30 days after the people's court takes preservation measures, so that disputes related to the preserved property can be resolved through trial. If the interested party fails to bring a suit in a people's court or apply to an arbitration institution for arbitration within 30 days, the people's court shall lift the property preservation measures.
The difference between pre-litigation property preservation and litigation property preservation lies in:
1. The application entities are different. Property preservation before litigation is put forward by interested parties to the people's court before prosecution; Litigation property preservation means that the parties apply for property preservation in the course of litigation. The preservation of litigation property shall be applied by the applicant, and the people's court may take preservation measures ex officio when necessary. Property preservation before litigation shall be applied by interested parties, and the court shall not take preservation measures ex officio.
2. The time for applying for property preservation is different. Litigation property preservation should be applied after the case is accepted and before the judgment takes effect; Property preservation before litigation must apply to the people's court that has jurisdiction before litigation.
3. There are different requirements for the applicant to provide guarantee. If the people's court decides to provide a guarantee for litigation property preservation, the applicant must provide a guarantee; If property preservation cannot provide guarantee, the application shall be rejected. If the applicant is not ordered to provide a guarantee, the applicant shall not provide a guarantee, and if the people's court takes preservation measures ex officio, the relevant interested parties shall not provide a guarantee. For pre-litigation property preservation, the applicant must provide a guarantee. If no guarantee is provided, the application shall be rejected.
Pre-litigation behavior
China's patent law, trademark law, copyright law and other laws stipulate that in order to safeguard the legitimate rights and interests of the applicant, the intellectual property owner or interested party may apply to the court to take measures to order the respondent to stop infringing the patent right, trademark right or copyright, that is? Stop infringement before litigation? What's the name of the procedural law? Preservation of pre-litigation behavior? . Articles 9 and 10 of the Paris Convention for the Protection of Industrial Property stipulate that the obligee has the right to? Illegal addition of trademarks or trade names? Behavior? Fake country of origin and manufacturer's logo? Behavior? Unfair competition? Take appropriate legal relief measures to effectively stop these illegal acts, including the right of interested parties to apply for stopping pre-litigation property preservation. According to the international legislation and judicial practice of intellectual property protection, Article 6 1 of the Patent Law revised in 2000 stipulates that the patentee or interested party has evidence to prove that others are committing or will commit patent infringement, and if it fails to stop it in time, its legitimate rights and interests will be irretrievably damaged, it may apply to the people's court for measures to be ordered to stop relevant acts and property preservation before prosecution. The people's court shall apply the provisions of Articles 93 to 96 and 99 of the Civil Procedure Law in handling the application mentioned in the preceding paragraph. ? On this basis, 200 1, the Supreme People's Court promulgated "Several Provisions on the Applicable Law for Stopping Patent Infringement before Litigation"; There are similar provisions in Article 57 of the Trademark Law and Article 49 of the Copyright Law as amended by 200 1. These provisions establish the pre-litigation property preservation system of China's intellectual property law.