Pre-trial injunction applications and problems in dispute cases

The term “pre-trial injunction”, also known as a “pre-trial order to cease the act in question”, means that a party requests, before the institution of a legal action in a dispute case, that the court issue an order demanding that the other party not carry out a certain act, so as to promptly put a stop to an act, infringing or potentially infringing the petitioner’s relevant rights, that is currently being, or is about to be, carried out. In December 2001, China established the pre-trial injunction system in newly revised intellectual property (IP) laws and regulations in accordance with the requirements of the international Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement. The amended Civil Procedure Law implemented in 2013 also adds provisions on pre-trial injunctions to provide the legal basis for applying pre-trial injunctions in other dispute cases, e.g. trade secret dispute cases, privacy dispute cases, etc.

Based on these legal provisions, a party in a dispute case can avoid the irreparable losses arising due to the relevant act of the other party by applying for a pre-trial injunction, and the court needs to review the party’s application to determine whether to approve it, so as to avoid causing losses to the relevant party due to the erroneous application of a pre-trial injunction.

Procedural provisions

The legislation addressing pre-trial injunctions in China tends to be principle-oriented. The emphasis in existing laws and relevant judicial interpretations of the Supreme Court is the resolution of the procedural issues involved when parties to dispute cases apply for pre-trial injunctions, including the competent court, the evidence that needs to be submitted, matters relating to the provision of security, reconsideration, institution of the legal action, etc. As relevant laws, judicial interpretations and regulations contain relatively specific provisions on these, the author will not address them further.

Craig Zhou is a lawyer at Martin Hu & Partners