Dissertation > Political, legal > Legal > Chinese law > Procedural Law > Civil Procedure Law

Research on Preliminary Injunction in the Field of Intellectual Property Rights, and in Perspective of Procedural Justice

Author JiangJunXia
Tutor JiangQun
School Liaoning University
Course Procedural Law
Keywords Ban Procedural Justice Sequestration
CLC D925.1
Type Master's thesis
Year 2011
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Evolved from the ancient Roman, preliminary injunction system as an important remedy in the legal systems of different countries can be established. Although there are different statements, such as "sequestration", "temporary injunction", but their essential features are the complete physical dispute in the party prior to the trial. In order to prevent human rights violations causing greater losses to the case, the court try to restrict or prohibit violations made in a timely manner. Preliminary injunction actually is a procedural measure rather than entity, Germany, Japan, civil law countries bring the preliminary injunction explicitly into the preliminary injunction in the civil law as a procedural safeguard to regulate and apply and to the concept of procedural guidance, the preliminary injunction proceedings of value placed on the system requirements. The measure of a procedural system is just, fair, and whether the entity to provide a stable and effective relief to the dispute settlement mechanism of the important ways.By comparison of the two legal bans on the system, found in Germany and Japan. The continental legal system is more rigorous, comparing to integrity of the system before the ban to the provisions of the Civil Law procedure, rules of principle with a complete guide for the judicial process to pay attention to pre-hearing, a statement of strict grasp whether the applicant is not the point of non-applicable. So the cautious attitude also makes a low support for the ban to apply. Common law countries also ban before and after the award is made, the different stages of the procedure provides a tight, or short duration before the ban, it should be prohibited if the need to continue to apply, such as "interlocutory injunction," and other new forms of the ban. Two Schools of the procedural provisions is worth learning.Finally, China’s legislative framework for preliminary injunction understanding of system analysis, preliminary injunction only in the field of intellectual property law such as the "Patent Law," "Trademark Law", "Copyright Law" and relevant judicial interpretations of "pre-trial suspension infringement "is established, in a certain sense, a preliminary injunction to fill the gaps, but these provisions are too simple, lack of uniform rules, it is inevitable to bring confusion to the judicial application. Does not adequately protect the procedural rights of the applicant, no such hearing, hearing and other procedures should be provided by the applicant prior statements or opportunity to be heard, the judge only words or evidence in accordance with a ruling party, and even started in the ruling after. The respondent may file a reconsideration procedures are flawed, contrary to the parties and judges neutrality, equal participation program requirements. It should be the priority of procedural justice philosophy as a guide, through the hearing process before the decision to allow the parties to debate cross-examination, and after the verdict of the review process, not just by a higher court for trial or the review of paranoia, if that ban ruling indeed, when no factual or legal basis. The applicant can request reconsideration release or discharge decision. These procedures are designed not only to support the legislation and the promotion of justice, more research needs to continue in-depth legal research to the development of a Code of Civil Procedure providing a useful perspective and reference value.

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