民事行为保全申请错误的判断与赔偿

Discussion on the Judgment and Compensation for Erroneous Application of Civil Conduct Preservation

民事行为保全申请错误的判断标准及其赔偿的相关问题一直不明晰。由于行为保全制度的功能是弥补对物救济和终局救济不能弥补的损害,因此在程序上区别于后两种救济的程序,更强调对损害的裁量和弥补、更注重利益权衡。行为保全申请错误的判断要剥离于最终裁判,根据是否满足行为保全标准和案情裁量。在错误申请的弥补上,要以合理且可变动数额的担保为首要选择,以保全错误赔偿之诉为备位选择。美国法中间禁令制度的经验在此方面具有优越性,可资参考。

The criteria for judging the application errors for civil conduct preservation and the related issues of compensation have not been clarified. Since the function of the conduct preservation system is to make up for the damage that cannot be compensated for with the property preservation and final judgment,the procedure of conduct preservation emphasizes the discretion and compensation of the damage and pays more attention on the balance of interests. The judgment of the application errors in conduct preservation shall be divested to the final judgment according to whether the conduct preservation criteria and the merits match each other. For the remedy of the wrong application,it is necessary to use a reasonable and variable amount of security guarantees the primary choice,and to protect the false compensation as the preservation choice. The experience of the US interlocutory injunction system is superior in this respect and can be used for reference.