Article 108 of the Civil Procedure Law is an independent substantive law consisting of a com-plete rule regulating damages for wrongful preservation.The judicial interpretation on and the definitions of"wrongful application(for preservation)"by scholars are all incorrect.In judicial practice,damages for wrongful preservation are characterized as tort liability with fault as its subjective constituent ele-ment,which is not only a methodological and epistemological error,but also an obstacle to the realiza-tion of the debtor's right to claim damages for wrongful preservation.The liability for damages for wrongful application for preservation is the creditor's risk liability based on the enforcement of a preser-vation decision that does not definitively determine the substantive legal relationship between the creditor and the debtor.Wrongful preservation means that the court's decision on the application for preservation was improper ab initio because of the lack of substantive elements of preservation.Both the existence of right to be preserved and the necessity of preservation are the substantive elements of preservation,with-out either of which the preservation ruling would be improper.The impropriety of a preservation ruling should be independently examined and judged by the court hears the action for damages in the light of the objective legal situation and should not be bound by the decision of the preservation court.The judg-ment on the preserved rights made by the court hears the case has res judicata and binds the court hears the action for damages.Based on the position of balanced protection of both parties,the insurance sys-tem should be introduced to decentralize the risk of damages of the person responsible for the wrongful application and the liability insurance of preservation should be dovetailed with damages of wrongful ap-plication for preservation.
wrongful preservationdebt in lawrisk liabilitynecessity of preservationliability insur-ance of preservation
NETL
NSTL
万方数据
维普
