财产保全的功能界定与思考

The Thinking on the Function Cause from the Custody of Property

财产保全制度是为保障民事私权的实现而设置的,其所适用的案件类型应界定为金钱请求的案件,法院无权依职权采取且只需做形式审查。其申请的理由仅是无法执行或者难以执行的担心即可。在宽泛的申请背后,为保护债务人的利益应确立担保为一般原则,但也有例外。

Attachment is for guaranteeing the realization of civil rights. It is applicable to monetary claims. The court has no authority to issue an order on attachment, but can make formal checks. The reasons for applying for attachment can be the worry of failure to or difficulty in enforcement of a court decision. Behind the loosely limited application for attachment, the protection for creditors＇ interests shall be defined as a general principle exceptions.