Rearch On The Preliminary Injunction Of Intellectual Property

As a kind of temporary judicial remedy,Preliminary injunction originated from Rome law,which also has different form as conservatory measures in continental law system and interlocutory junction in the common law.The Injunction have various function in substantive law and procedure law.To protect the rights of the applicants,and distinguish from property preservation and preliminary execution,it have the function of protect and can make positive effects to the intellectual property.Preliminary injunction has short history in china with demand of WTO,also accord with the requirement of intellectual property,to reflect the characteristic of procedural participation and equal ideal of that one.Compare to the complete institution and practice of overseas injunction,the application and research of preliminary injunction in china was not enough for the judicatory practice,which would effect the theory study,legislative reform and guiding implication.To improve the system of preliminary injunction was important adapting the tendency of globalization,it would protected the development of our country and minimize the difference of developed countries.The paper discussed the preliminary injunction of intellectual property,which would be divided into five part,the basic category and attribute,the jurisprudence and requirement,the extraterritorial application and theory,the application of injunction in china,and proper means to improve the preliminary injunction system of intellectual property.Firstly,It would defined the preliminary injunction of intellectual property based on the extraterritorial system and related theory.Combing the background,feature and function,making clear the dual system of preliminary injunction and the relationship between custody of property and prior execution.Secondly,research the theory and practical foundation of preliminary injunction based on the negative absolute right,due process theory,and development of intellectual property,especially discuss the preliminary injunction requirement of intellectual property,which real the legal rationality and inevitability in found and apply the preliminary injunction system of intellectual property.Thirdly,examination standard was the essential ingredient on the preliminary injunction research of intellectual property.Compare to the generality and diversity of preliminary injunction of intellectual property and relative theory,proposed the four standard of examination standard under the combination of legislative experience and traditional law culture,which was considered as a comprehensive point.Fourthly,Quantitative analysis on the preliminary injunction application of intellectual property,pointed out the problem and cause,that the further factor was conventional ideas concentrate on the practice,confusion of legislative process and so on.That reals the necessity and urgency of preliminary injunction top design of intellectual property.Fifthly,proposed the legislative mode of preliminary injunction,separated style of substantive law and procedure law,based on the analysis above.Put forward the request ideals of preliminary injunction.Improving the definition of injunction claim right,regarding custody of property and prior execution to construct the procedure separation,providing an effective examination standard.