民事诉讼中行为保全的操作难题与应对

Operational Problems and Solutions of the Act Preservation in Civil Procedure

我国民事诉讼中的行为保全在司法实践中运用的较少,尚存在若干操作难题。'启动难'指法院主动启动行为保全有困难且法院判断是否启动行为保全有困难。'审查难'指法院缺乏重点的审查内容和独立的判断标准、审查程序不健全、当事人缺乏辩论。'执行难'指执行范围模糊、执行主体单一、执行措施难以强制化、执行过程缺乏有效地监督。'救济难'指救济制度欠缺体系化、复议救济的效果不理想。以上困难,需要在制度层面和操作层面作进一步的完善。

The act preservation is rarely used in China civil procedure,and there are some operational problems.'Difficulties in starting'means that it is difficult for the court to start the procedure of act preservation by itself,and hard to decide whether it is need to decide an act preservation.'Difficulties in judging'means that the main points and an independent standard are lacked for the decision on act preservation,and the judging procedure is imperfect,and the court debate is also lacked.'Difficulties in implementing'includes the ambiguous scope of implementation,the single subject of the implementing,difficulties in the measures of the enforcements,and the lack of supervision during the process of enforcement.'Difficulties in legal remedying'includes the lack of legal remedy system,and the unsatisfactory reconsideration.All the above need to be further improved at the institutional level and operational level.