Study On Relief Mode Of Imminent Infringement

The phenomenon of imminent infringement has caused extensive concern in the area of intellectual property.This is based on the fact that intellectual property is a special right of intangible property and need to strengthen the preventive protection.But we also need to block the infringement in the other areas of property right and person right.In the area of intellectual property,our country introduced "injunction before litigation",so the imminent infraction is viewed as tort,named "imminent infringement".And in the academic circle there is no consistence upon how to block the imminent infringement.This paper discusses all the preventive protection patterns.The three relief patterns are:the claim of absolute right pattern;the right infringement responsibility pattern;the combined pattern of the previous two.This paper analyzes and compares the three patterns to discuss the feasibility and rationality of the combined pattern under the present frame of law in our country.In addition,it's necessary to introduce Act Preservation to civil litigation.To provide procedure law protection to block the imminent infringement,the civil procedure law could detail the combined pattern,define the related standard,balance the interest between the obligee and the imminent infringer.The paper consists of five parts:The first part is the generality of imminent infringement.It first researches the origin of the imminent infringement,points out that imminent infringement is the action about to infringe the absolute right or the ongoing action,it should apply the behavior standard not the result standard.Second,according to the stage of the occurrence,imminent infringement can be divided into two type:the infringement that haven't happened but about to happen;the ongoing infringement.At last,the scope of application should be expanded to other areas such as property right and person right.The second part elaborates the relief pattern of the imminent infringement.Discusses the different patterns of imminent infringement in the two legal systems.The civil law system blocks the imminent infringement by the claim of absolute right and the behavior protection system.The common law system deals with this by "Infringement" in the property law.In China,we use the combined pattern and need some improvement in the areas like the intellectual law and civil procedure law.The third part elaborates the claim of absolute right pattern.It first explains the type of the absolute right,defines the property right?person right and the intellectual right.Second it analyzes the applicable requirement of absolute right,don't take the occurred infringement or fault as necessary essentials,and there is no limitation lawsuit prescription.At last,it explains the value of the absolute right and concludes that it have independent value even under the combined pattern and we should construct complete absolute right system.But simple absolute pattern is not applicable under the present law system.The fourth part is the key part of the paper.It elaborates the feasibility and rationality of the imminent infringement.First,it explains the challenge of "Law of Responsibility on Rights Violation" to the traditional infringement.Second,it demonstrates the rationality of the infringement responsibility pattern.The current law has both theory base and practical meaning.At last,it elaborates the rationality of the combined pattern.Under this pattern,different bearing forms of liability should have different constitutive requirements and give the related party free choose,the victim can choose absolute right or depend on the tort law to seek relief.The fifth part elaborates the relief of the imminent infringement in the procedure law and brings the defects of the Civil Procedure Law upon the behavior protection system.The imminent infringement should introduce behavior protection system or injunction system besides the combined pattern in the substantive law,so as to realize the combination of substantive law and procedure law.