The applicable conditions and scope of property preservation system and litigation injunction system are different. The property preservation system is applicable to ordinary civil litigation, and applications for preservation can be filed before and during litigation, and the scope of preservation can be all the relevant property of the defendant. Property preservation generally takes the form of seizure or seizure, and the amount is limited to the amount sued by the plaintiff.
At present, the prohibition system is only applicable to cases of patent and trademark infringement in China, which is formulated to meet the requirements of trips Agreement after China's entry into WTO. The injunction can also be put forward before or during the litigation, but its main request is that the defendant or interested party stop the infringing act and prohibit the circulation of related infringing articles. In practice, the court is strict in the use of injunctions. Generally speaking, applicants need to provide more adequate guarantees.
How to remove pre-litigation preservation
1. Where the preservation applicant withdraws his application.
2. If the protected person whose property is preserved provides other property with equivalent value that is beneficial to execution, the people's court may make a ruling to change the property provided by the object of preservation into the protected person and unseal the property that was originally sealed up.
legal ground
Provisions of the Supreme People's Court on the Application of Laws to Stop Patent Infringement before Litigation.
Article 8 The measures taken to stop the infringement of patent rights shall not be lifted by the respondent's counter-guarantee.
Article 17 When the patentee or interested party brings a patent infringement lawsuit to the people's court, the people's court may make a ruling in advance at the same time.
code of civil law
Article 92 If a judgment cannot be executed or is difficult to be executed due to the behavior of one party or other reasons, the people's court may make a ruling on property preservation upon the application of the other party. If the parties do not apply, the people's court may also order the adoption of property preservation measures when necessary. When the people's court takes property preservation measures, it may order the applicant to provide a guarantee; If the applicant fails to provide a guarantee, the application shall be rejected. After accepting the application, the people's court must make a ruling within 48 hours in case of emergency; Where property preservation measures are ordered, they shall be executed immediately.
Article 93 If an interested party fails to apply for property preservation immediately because of an emergency, which will cause irreparable damage to his legitimate rights and interests, he may apply to the people's court for property preservation measures before bringing a lawsuit. The applicant shall provide a guarantee. If no guarantee is provided, the application shall be rejected. After accepting the application, the people's court must make a ruling within 48 hours; Where property preservation measures are ordered, they shall be executed immediately. If the applicant does not bring a lawsuit within 15 days after the people's court takes the preservation measures, the people's court shall lift the property preservation.
Article 94 Property preservation is limited to the scope of the request or the property related to this case. Property preservation shall be sealed up, detained, frozen or other methods prescribed by law. After freezing property, the people's court shall immediately notify the person whose property has been frozen. Property that has been sealed up or frozen shall not be sealed up or frozen again.