Discussion On Judicial Application Of The Preliminary Injunction

The injunction before the institution is in the prosecution of the former, the consent of the applicant requests the court to the proposed injunction application, forced by the applicant or not to do certain behavior system, also known as the act preservation before litigation. Injunction for the applicant and the applicant’s rights and obligations are enormous influence, if not used correctly, the applicant and the respondent will cause irreparable damage. Injunction is a transplant from the British and American law system in Anglo American law, because in the legal thinking and the judicial application and China has a lot of difference, therefore this system to China has been "tepid", and even hard to find the trace. The reason why there is such a result, and this system in the refinement of localization and relevant rules of not doing enough in a relationship, which leads to the people’s court when confronted with such cases, cannot have a definite object in view of the application of this system."Yang Jikang(pen name Yang Jiang) and the Sungari International Auction Co, Li Guoqiang injunction case" is a typical case of the Supreme People’s court in 2004, this case is applicable for an injunction system. In this paper, taking the case as the breakthrough, the injunction in intellectual property in judicial practice, the applicable law of a discussion.The first part: the problem put forward. Focuses on "Yang Jikang and the Sungari company, Li Guoqiang injunction case" and put forward the thinking of the injunction.The second part: our country intellectual property injunction before the ban on the historical review and comb. Injunction system in our country’s intellectual property law and the relevant judicial interpretations in the provisions of more dispersed, this part of the patent, trademark, copyright three aspects make a summarize of injunction.The third part: apply injunction before the main substantive conditions. Compared with other systems, injunction before litigation of intellectual property rights is a relatively new litigation system, due to the lack of legislation and practical experience of the abstract, caused the system problems in the application. This part will apply injunction, subject qualification and the stability of the right, the likelihood of infringement, irreparable damage, the balance of interests of both sides, to provide security, public interest considerations, the injunction before the economic analysis of these aspects, combined with the part of the court practice discussion.The fourth part: the procedural issue injunction in. The injunction application, mainly for the construction of the hearing procedure, review procedures, terminate the program of these three procedures and application has many places worth exploring. Ban made, in some courts is provided with the hearing procedure. But in the judicial interpretation has not stipulated the hearing procedure of concrete, specific operations in the process of hearing procedure, different court practices are not the same. The injunction request the court shall make a ruling within forty-eight hours, if make the injunction, apply the hearing procedure, then because of time constraints, it is difficult to organize in such a short time hearing. Application of hearing procedure also needs refinement. For the reconsideration procedure, is to be the applicant’s relief measures, but the current provisions of reconsideration procedure is still relatively rough, the reconsideration organization have not relevant provisions. For the termination procedure, at present there are places to be perfected, especially the need to let the injunction to be lifted.The fifth part: the parties bound. If the applicant is injunction application errors, to be applied to artificial damage, will use the applicant to provide a guarantee to make up for the loss of the applicant. The respondent in the ban is made, if not the implementation of the ban, will be punished accordingly.The sixth part: the improvement and refinement of ideas. Through the proposed introduction of injunction in the first five parts, this part for the existence of injunction of the solution of the problem, provide a little sparse shallow opinion. Let the injunction can really play its timely, rapid effect, at the same time improve the remedial measures, and in other areas of intellectual property rights, such as unfair competition, to play its role.