1, property preservation in litigation refers to the behavior of the people's court to take compulsory measures against the property of the parties or the subject matter of the dispute after accepting the case and before making a judgment.
Property preservation in litigation shall meet the following conditions:
(1) A lawsuit against disputed property that requires property preservation must be a lawsuit of payment, that is, the right of claim in this case includes the content of property payment.
(2) Due to subjective and objective factors, the future effective judgment cannot be executed or is difficult to execute. 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.
(3) 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.
(4) Property preservation in litigation shall 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.
(5) 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.
2. 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.
(1) The application for property preservation before litigation must have the content of payment, that is, the creditor's rights filed by the applicant in the future have 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) An application for property preservation before litigation is filed by an interested party. Interested parties, that is, people who have disputes with the respondent or think that their rights have been infringed by the respondent.
(4) Before litigation, the property preservation applicant must provide a 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 within 30 days after the people's court takes preservation measures, so that disputes related to property preservation can be resolved through trial. If the interested party fails to bring a lawsuit to the people's court within 30 days, the people's court shall lift the property preservation measures.
3. Behavior preservation The so-called behavior preservation means that in civil proceedings, in order to avoid undue damage or further damage to the interests of the parties or interested parties, the court may take compulsory measures against the actions of the parties concerned upon application. There is no appeal against the ruling of behavior preservation, but you can apply for reconsideration.
Article 162 of the Supreme People's Court's Opinions on Several Issues concerning General Principles of Civil Law stipulates that in the case of stopping infringement, removing obstruction or eliminating danger in litigation, the people's court may make a ruling in advance upon the application of the parties or ex officio. This provision provides a legal basis for the court to stop the infringement in time. 1992, in the Supreme People's Court's Answers to Several Questions on Trial of Patent Disputes, it is clearly stipulated that in the trial of patent infringement cases, it often happens that the infringer deliberately delays the lawsuit by declaring the patent invalid and continues to carry out the infringement ... If the patentee applies for property preservation and provides guarantee, the people's court may order the defendant to stop the infringement or take other measures to stop the expansion of the infringement damage. Although this provision is called "property preservation", its preservation content is aimed at the defendant's behavior. To some extent, it can be regarded as the embryonic form of behavior preservation system in the field of intellectual property.
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civil action
If, during the trial of the case, you find that the debtor is trying to transfer or hide the property and deliberately defaults. This is likely to lead to your winning the lawsuit in the end, but you won't get the money. At this time, you can apply to the court for property preservation after you have mastered the exact evidence. Property preservation refers to the protective measures taken by the court to restrict the punishment of the parties' property or disputed subject matter in order to ensure the execution of the judgment or avoid property losses before the interested parties file a lawsuit or the parties apply for execution after filing a lawsuit.
In the trial practice, not all civil cases can take litigation preservation measures. The application for litigation preservation must meet the following conditions: (1). The case of litigation preservation must be a lawsuit of payment, or a lawsuit merger containing payment, that is, the lawsuit must have the content of payment. Because the object of litigation preservation is the object of dispute between the two parties or the property related to the dispute, the purpose of adopting litigation preservation measures is to ensure that the case can be effectively executed after the judgment. Civil execution must be a lawsuit of payment, that is, there must be payment content. Therefore, if the applicant will not have the content of property payment, it is meaningless to take preservation measures. Simple actions of confirmation and change have no payment content, so litigation preservation is not applicable.
(2), there must be the premise of litigation preservation. It must be possible that the judgment cannot be executed or is difficult to be executed due to the behavior of one party or other reasons, or it may cause further losses to the state and people's property, irreparable losses to the legitimate rights and interests of the obligee, and irreparable consequences.