By Sun Jin (Marlow), Chinese attorney at Law; Ying Jiehong (Grace), Trainee Lawyer. Republishing this article please indicate author and source of this article. March 27, 2014

 
 


The latest revision of the civil procedure law of the People's Republic of China (hereinafter referred to as New Civil Procedure Law) came into effect on January 1, 2013. Temporary injunctive relief measures are applicable according to New Civil Procedure Law in general civil lawsuit. Previously only the copyright owner, patentee and the trademark right holder have the right to request the people’s court to make the injunction for infringement behavior before litigation. Shortly after the implementation of New Civil Procedure Law, the temporary injunctive relief measures applied to a case widely-watched.

The Illustration of Articles

According to the article 100 of New Civil Procedure Law, a party can apply to the people’s court to request or forbid the opposite party to do a certain action in civil proceeding before a judgment is given (injunction in litigation) . According to the article 101 of New Civil Procedure Law, a party can also apply to the people’s court to request or forbid respondent to do a certain action before civil proceeding or arbitration ( injunction before litigation and injunction in litigation are referred to as temporary injunction). As far as the injunction before litigation ,if the applicant doesn’t file a suit or apply for arbitration within 30 days after the people’s court has adopted preservation measures, the injunction will be delegalized automatically。


One of the considerations that whether the court made an order for a temporary injunction is that whether the applicant may be or be about to suffer irreparable damage. At the same time , the applicant shall provide guarantee when applies for temporary injunction. The guarantee is usually money guarantee and shall match its appeal.

A Case

In the case of Guangzhou Pharmaceutical Holdings Limited v. JDB Beverage Co. Ltd, the Guangzhou intermediate people's court became the first one to make such temporary injunction after the implementation of New Civil Procedure Law. In December 2012, Guangzhou Pharmaceutical Holdings Limited ,the owner of the well-known trademark "Wanglaoji" ,sued JDB Beverage Co. Ltd and a department store which is a distributor of JDB Beverage Co. Ltd at Guangzhou intermediate people’s court for false propaganda and the infringing act of unfair competition. The amount of tort claims proposed by Guangzhou Pharmaceutical Holdings Limited is 10 million yuan, in addition, Guangzhou Pharmaceutical Holdings Limited also requested the court to make an injunction in litigation and required the defendants to stop all the infringing act immediately until the case was closed. On January 31, 2013, Guangzhou intermediate people's court then issued a ruling in writing that the slogan used by JDB Beverage Co. Ltd constituted the false propaganda and require the defendants to stop using related slogans and propaganda immediately in order to keep Guangzhou Pharmaceutical Holdings Limited from further loss before the end of litigation .

Conclusion

Temporary injunction in New Civil Proceeding Law is significant for the parties whose legitimate rights and interests are abused and who cannot wait time-consuming legal or arbitration proceedings to be closed that it provides fast and efficient temporary relief measures. The specific implementation of temporary injunction and judgment standards of written ruling made by the courts need further validation through practice because the time of the implementation of New Civil Proceeding Law is relatively short.

 
     

 

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