What should I do if the litigation hold is wrong? Litigation preservation errors

In the course of litigation, the plaintiff applies to the court to take preservation measures against the defendant's property to ensure the smooth realization of enforcement, which is the litigation right enjoyed by the parties in accordance with the law. But what if the application for interim measures itself is wrong? Should the applicant for interim measures be liable for compensation?

In this regard, Article 105 of the Civil Procedure Law of the People's Republic of China stipulates that "if there is an error in the application, the applicant shall compensate the respondent for the losses suffered by the respondent as a result of the preservation." "The problem is that the legislative provisions are too general in principle and say nothing about what constitutes an error in the application.

In judicial practice, first of all, if there is an error in the application for preservation, it is usually an important criterion to determine whether the applicant's claim has been supported by an effective judgment of the court as an important criterion for determining whether the preservation is wrong, and there are many reasons for the error of preservation, such as there is no basis for claiming the subject matter of the litigation, etc., but there is only one erroneous result, that is, the claim is not supported by the effective judgment of the court, and it should be noted that the amount of the judgment is less than the amount of preservation, and the reasonableness of the gap is not an error in the preservation application. Second, the applicant is subjectively at fault for the error in the preservation application, either intentionally or negligently. Finally, there is a causal relationship between the losses caused to the respondent and the error in the preservation application, and the losses from the preservation error are mainly reflected in the direct losses and positive losses such as interest losses during the preservation period and interest on alternative capital loans.

Legal basis: If there is an error in the application under Article 105 of the Civil Procedure Law of the People's Republic of China, the applicant shall compensate the respondent for the losses suffered by the respondent as a result of the preservation. Article 6 of the Tort Liability Law of the People's Republic of China provides that an actor who infringes upon the civil rights and interests of others due to fault shall bear tort liability.

Litigation preservation refers to property preservation. The purpose of the property preservation system is to safeguard the legitimate rights and interests of the applicant, and at the same time to protect the legitimate rights and interests of the respondent. Therefore, if the application of the applicant for preservation is wrong, it should bear the corresponding liability, which is legally fair to both the applicant and the respondent.

The liability of the applicant for the wrong application is the liability for the losses suffered by the respondent due to the erroneous preservation, and the liability for all the expenses incurred by the respondent due to the supervision. In the case of property preservation, the author believes that the court has an obligation to conduct substantive review in the whole process of property preservation, and that the applicant's property preservation is subject to substantive review and approval by the court, and the court finally takes preservation measures against the respondent after making a ruling.

Where there is an error in the application for litigation preservation, the applicant shall compensate the respondent for the losses suffered by the respondent as a result of the preservation. Litigation preservation is the property preservation taken by the court after the case is filed. At the same time as the preservation is enforced, the undertaker shall serve the civil ruling on the applicant, the respondent and the obligated assistant within the time limit prescribed by law.

Article 105 of the Civil Procedure Law provides that if there is an error in the application, the applicant shall compensate the respondent for the losses suffered by the respondent as a result of the preservation. Article 100 of the Civil Procedure Law provides that in cases where it may be difficult to enforce a judgment or cause other harm to a party due to the conduct of one of the parties or other reasons, the people's court may, upon the application of the other party, rule to preserve the property, order the party to perform certain acts, or prohibit the party from doing certain acts; Where the parties do not submit an application, the people's court may also rule to adopt preservation measures when necessary. The people's court may order the applicant to provide a guarantee if it adopts preservation measures, and if the applicant does not provide a guarantee, it shall rule to reject the application.

After the people's court accepts the application of the swift hand, it must make a ruling within 48 hours if the situation is urgent; Where a ruling is made to employ preservation measures, enforcement shall begin immediately.

If there is an error in the application for litigation preservation, the applicant shall compensate the respondent for the losses suffered by the respondent as a result of the preservation. Litigation preservation is the property preservation taken by the court after the case is filed. At the same time as the preservation is enforced, the undertaker shall promptly serve the civil ruling on the applicant, the respondent, and the obligated assistance within the time limit prescribed by law.

Civil Procedure Law of the People's Republic of China

The hundredth stall chop.

In cases where it may be difficult to enforce a judgment or cause other harm to a party due to the conduct of one of the parties or other reasons, the people's court may, upon the application of the opposing party, rule to preserve its property, order it to perform certain acts, or prohibit it from doing certain acts;

Where the parties do not submit an application, the people's court may also rule to adopt preservation measures when necessary. The people's court may order the applicant to provide a guarantee when taking preservation measures, and if the applicant does not provide a guarantee, rule to reject the application. After the people's court accepts the application, it must make a ruling within 48 hours if the situation is urgent;

Where a ruling is made to employ preservation measures, enforcement shall begin immediately.