On The Constitution Of The System Of Provisional Injunction In Civil Procedure

For a long time, there were two kinds of provisional remediational measures in our code of civil law, which were property preservation and advance execution, there was no system of provisional injunction, and this was a big pity for our legislative framework of civil action. Fortunately, there were some fundamental regulations in new exclusive law and subsequently in new brand law and new copyright law. On June 5, 2001, the supreme people court passed some statutes of how to apply clauses to stopping the infringed behave of patent right before lawsuit, which endued those abstract and fundamental items with maneuverability and practicability. There were many patent cases which utilized this preceding measure to deal with all over the country until today, and received good effect. On the followed day of December 25, 2001, aiming at the 57th clause of amendatory brand law, the supreme people court made an explanation of how to apply clauses to stopping the infringed behave of the special right of registered trade mark before lawsuit and how to save evidence from damage, which ordained before the litigation of intellectual property, or during the people courts was hearing the cases, the owners of trademark or the relative individuals might bring forward requisition to stop the behave of infringements and might save evidence from damage. In fact, these regulations perfected the legislation of intellectual property further, and for the owners of intellectual property it was a trenchant weapon to protect their rights.Certainly, comparing with a good many nations which have comparative perfect system of injunction, ours is still locating at the first step and needing perfection urgently. When torts are happened and bought on much damage that difficult to remedy, before going to court obliges have no way to get legally redress, they depend only on systems of property preservation, advance execution and the final sentence. During the time of from obliges find tortuous behavior to the civil courts take a brief and adopt some provisional remediational measures, obliges have no way but look on helplessly. If there is no system of provisional injunction, in my opinion, the provisional remediational measures will behalf-baked and the system of civil procedural law will be distempered, for there are many infringed behaviors in our life but the existing punitive means can not ensure those victims from sufficient and effectual relief. We should constitute and perfect the system of provisional injunction on the base of the existing relative ample experience in the area of intellectual property as soon as possible; we should expand its applicable area to the whole provisional redress of tort and not only in the area of intellectual property.Begin with the actuality of legislation and judicature of provisional remediational measures, this paper points out that ours has already not fit with international condition , national politics , economic development and the increasing consciousness of protecting civil rights and interests of people, and should be developed and perfected urgently ; the paper introduces and comments on some representative systems of provisional injunction all over the world, and stresses its using for reference to ours; it also analyzes the urgent and the needful to construct the system of provisional injunction in the new times; at last, this paper emphasizes discusses how to construct and perfect the system of provisional injunction in our code of civil law, and put forward my opinions.