Opinions of the Supreme People's Court on Several Issues Concerning the Application of the Civil Procedure Law of the People's Republic of China and the People's Republic of China 6. Property Preservation and Prior Execution

98. The People's Court, in accordance with Article 1 of the Civil Procedure Law Article 92 and Article 93 stipulate that if the applicant is ordered to provide a guarantee when taking pre-litigation property preservation or litigation property preservation, the amount of the guarantee provided shall be equal to the amount requested for preservation.

99. When the People's Court takes preservation measures for seasonal commodities, fresh food, perishable items, and other items that are not suitable for long-term storage, it may order the parties to deal with them in a timely manner, and the People's Court shall keep the price; when necessary, the People's Court shall The court can sell it and keep the price.

100. When the People’s Court takes measures to seal up or detain property during property preservation, it shall properly keep the sealed or seized property. The parties, relevant units or individuals responsible for safekeeping, and the People's Court are not allowed to use the property.

101. When the people's court conducts property preservation on real estate and specific movable properties (such as vehicles, ships, etc.), it may seize the relevant property rights certificates and notify the relevant property rights registration department not to handle the transfer procedures of the property. Property preservation measures; when necessary, the property may also be sealed or detained.

102. The people's court may take property preservation measures against mortgages and liens, but the mortgagee and lien holder have priority in receiving repayment.

103. In a case where the parties are dissatisfied with the first-instance judgment and file an appeal, before the second-instance People’s Court receives the submitted case, if the party transfers, conceals, sells or damages property, etc., the property must be taken Preservation measures shall be taken by the people's court of first instance upon the application of the parties or ex officio. The ruling on property preservation made by the people's court of first instance shall be submitted to the people's court of second instance in a timely manner.

104. The people's court may take property preservation measures for the debtor's due earnings, restrict its withdrawal, and notify relevant units to assist in enforcement.

105. If the debtor's property cannot satisfy the preservation request, but has due creditor's rights against a third party, the People's Court may, upon the creditor's application, rule that the third party shall not repay the debtor in this case. If the third party demands repayment, the people's court shall deposit the property or price.

108. After a people's court rules to take property preservation measures, no unit may lift the preservation measures during the property preservation period, except for the people's court that made the preservation ruling to lift it on its own initiative or the superior people's court to decide to lift it.

109. The effectiveness of a property preservation ruling in litigation should generally remain until the effective legal document is executed. During the course of litigation, if the preservation measures need to be lifted, the people's court shall make a timely ruling to lift the preservation measures.

110. The People’s Court should promptly review the reconsideration application filed by a party who is dissatisfied with the property preservation or advance execution ruling. If the ruling is correct, the party's application will be rejected. If the ruling is inappropriate, a new ruling will be made or the original ruling will be revoked.

111. After the people's court has implemented the case first, if the applicant should return the benefits obtained from the early execution according to the legally effective judgment, the provisions of Article 214 of the Civil Procedure Law shall apply. .

The Economic Tribunal of the High People's Court asked whether the party providing guarantee for the respondent during property preservation should clarify its obligations in the judgment or mediation letter and whether the guarantor's property can be directly executed during the execution procedure. ?

The Economic Tribunal of the Supreme People's Court asked whether the parties who provide guarantees for the respondent during property preservation should specify their obligations in the judgment or mediation letter and whether the guarantees can be directly enforced during the enforcement procedures. Reply letter to the person’s property

Economic Tribunal of the Supreme People’s Court

Shandong Provincial Higher People’s Court:

Your Court’s Lu Gao Fa Han [1994] No. 59 Request for Instructions Received. After research, the reply is as follows:

During the trial of the case, when the People's Court decides to take property preservation measures, and the guarantor provides guarantee for the respondent, the People's Court does not need to specify the guarantor's obligations in the judgment or mediation letter. .

After the case is concluded, the property of the guaranteed party shall be executed first. If the guaranteed party has no property for execution or its property is insufficient to pay off the debt, the people's court may directly rule that the guarantor shall bear liability within the scope of the guarantee.

Reply on pre-litigation property preservation

How to understand Article 31, Paragraph 2 of the "Opinions on Several Issues Concerning the Application of the Civil Procedure Law of the People's Republic of China" Reply

On April 17, 1998, the Supreme People's Court of the People's Republic of China and the People's Republic of China

The Supreme People's Court issued a statement on how to understand the "On the Application of the The approval of Article 31, Paragraph 2 of the Civil Procedure Law "Opinions on Certain Issues" was adopted by the 970th meeting of the Judicial Committee of the Supreme People's Court on April 2, 1998, and is hereby announced and shall come into effect on April 25, 1998. .

Shanxi Provincial Higher People's Court:

Your Court's Jingao Fa [1996] No. 148 concerning the Supreme People's Court's "On the Application of the Civil Procedure Law of the People's Republic of China" Opinions on Certain Issues "Request for Instructions on How to Understand Paragraph 2 of Article 31" has been received. After research, the reply is as follows:

The provisions of Article 31, paragraph 2, of the Supreme People's Court's "Opinions on Several Issues Concerning the Application of the Civil Procedure Law of the People's Republic of China" refer to: in the People's Court After pre-litigation property preservation is adopted, if the applicant files a lawsuit, it shall be brought to the people's court with jurisdiction. If the people's court that takes pre-litigation property preservation has jurisdiction over the case, it shall accept the case in accordance with the law; if it does not have jurisdiction, it shall promptly transfer all materials for pre-litigation property preservation to the people's court that has jurisdiction over the case.

This is the reply of the Supreme People's Court on several issues concerning property preservation before litigation

The reply of the Supreme People's Court on several issues concerning property preservation before litigation

1998 On November 27, 1998, the Supreme People's Court of the People's Republic of China

"The Reply of the Supreme People's Court on Several Issues Concerning Pre-litigation Property Preservation" was issued by the Supreme People's Court on November 19, 1998. Adopted at the 1030th meeting of the Judicial Committee, it is hereby announced and will come into effect on December 5, 1998.

Hubei Provincial Higher People's Court:

Your court's E-Gao Fa [1998] No. 63 "Request for Instructions on Several Issues Concerning Pre-litigation Property Preservation" has been received. After research, the reply is as follows:

1. After the people's court accepts the party's application for pre-litigation property preservation, it shall base the amount of the pre-litigation property preservation subject and refer to the "Civil Procedure Law of the People's Republic of China" on levels. Jurisdiction and exclusive jurisdiction provisions determine the adoption of pre-litigation property preservation measures.

2. After accepting the applicant’s lawsuit, the people’s court that has adopted property preservation measures finds that the case it accepts does not fall within the jurisdiction of this court, and it shall transfer the case and the property preservation application fee to the court that has jurisdiction. People's Court.

After the case is transferred, the pre-litigation property preservation ruling will continue to be effective.

The actual expenses incurred in executing the pre-litigation property preservation ruling shall be returned by the People’s Court subject to the lawsuit to the People’s Court that made the pre-litigation property preservation in the application fee.

This is a reply. Interpretation of the Supreme People's Court on the question of whether a party outside the case should be liable for compensation for losses caused by an error in applying for property preservation

Announcement of the Supreme People's Court of the People's Republic of China

"Supreme People's Court" The Interpretation on the Issue of Whether the Party Should Be Liable for Compensation for Loss Caused by Mistakenly Applying for Property Preservation to Non-Case Persons” was adopted at the 1358th meeting of the Judicial Committee of the Supreme People’s Court on July 4, 2005, and is hereby announced. Effective from August 24, 2005 Be implemented.

August 15, 2005

Interpretation of the Supreme People's Court on the issue of whether the party concerned should be liable for compensation for losses caused by a party's error in applying for property preservation

(Adopted at the 1358th meeting of the Judicial Committee of the Supreme People's Court on July 4, 2005)

Fa Interpretation [2005] No. 11

Recently, some courts have applied for property preservation for parties involved Please ask our court for instructions on how to apply the law in cases of compensation disputes caused by mistakes that cause losses to outsiders. After research, the explanation is as follows:

According to Article 106 of the "General Principles of the People's Republic of China and Civil Procedure Law" and Article 96 of the "Civil Procedure Law of the People's Republic of China" According to other laws and regulations, if a party mistakenly applies for property preservation and causes losses to persons outside the case, the party shall bear liability for compensation in accordance with the law.

This is a reply. The Interpretation of the Supreme People's Court on the Property Preservation of Registered Trademark Rights by the People's Court

The Interpretation of the Supreme People's Court on the Property Preservation of Registered Trademark Rights by the People's Court

People's Court of the People's Republic of China *** and Announcement of the Supreme People's Court

The "Interpretation of the Supreme People's Court on Property Preservation of Registered Trademark Rights by People's Courts" was adopted by the 1144th meeting of the Judicial Committee of the Supreme People's Court on November 22, 2000. It is now It was promulgated and came into effect on January 21, 2001.

January 2, 2001

Interpretation of the Supreme People's Court on the people's court's property preservation of registered trademark rights

(November 2000 Adopted at the 1144th meeting of the Judicial Committee of the Supreme People's Court on the 22nd) Fa Shi [2001] No. 1

In order to correctly implement property preservation measures for registered trademark rights and avoid repeated preservation, the People's Court's decision on registered trademark rights is hereby Issues related to the right to carry out property preservation are explained as follows:

Article 1: When the People’s Court takes property preservation measures in accordance with the relevant provisions of the Civil Procedure Law and needs to preserve the registered trademark rights, it shall submit a request to the State Administration for Industry and Commerce for Trademark Rights The Trademark Office (hereinafter referred to as the Trademark Office) issues a notice of assistance in enforcement, specifying the name, registrant, registration certificate number, preservation period, and content of assistance in the preservation of the registered trademark that requires the Trademark Office to assist in preservation, including prohibition of transfer, cancellation of registered trademark, Change of registration matters and registration of trademark right pledge.

Article 2: The period of preservation of registered trademark rights shall not exceed six months at a time, starting from the date when the Trademark Office receives the notice of assistance in enforcement. If it is still necessary to continue to take preservation measures for the registered trademark right, the People's Court shall re-issue a notice of assistance in enforcement to the Trademark Office before the expiration of the preservation period, requesting continued preservation. Otherwise, the property preservation of the registered trademark right will be deemed to be automatically terminated.

Article 3: The People’s Court shall not conduct repeated preservation of registered trademark rights that have already been preserved. Reply on issues such as property preservation and enforcement of exclusive rights to registered trademarks

[2001] Min Sanhan Zi No. 3

Trademark Office of the State Administration for Industry and Commerce:

We have received the letter No. 66 of your trademark change (2001). After research, the answers to the questions

raised in the letter are as follows:

1. Regarding the assistance of different courts in preserving the same registered trademark on the same day

Implementation issues

According to the provisions of the Civil Procedure Law and the relevant judicial interpretations of our court, your office received more than two requests for assistance in preserving the same registered trademark on the same day

When executing a notice,

should assist in executing the earlier received notice of assistance in execution

in the order in which the documents are received; when documents are received at the same time and the order cannot be confirmed, , the relevant court may be informed to comply with Article 125 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement Work of People's Courts (Trial)" regarding "two or more If disputes arise in execution-related cases

before the People's Court, they shall be resolved through consultation.

If the negotiation fails, the case shall be reported to the superior court step by step until the case is reported to the superior court for coordination and handling." During the negotiation and application coordination process, your office may

not assist in enforcement matters for the time being.

2. Regarding the procedures for changing the right holder in accordance with the effective judgment of the court

p>

During the process, another court requested assistance in the enforcement of the preservation of registered trademarks

"The Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement Work of People's Courts (Trial)

) "Article 88, paragraph 1, stipulates that if each creditor has no security interest in the subject matter of execution

, he shall be compensated in the order in which the execution court takes execution measures.

It is stipulated that after a court requires your office to assist in the procedures for changing the owner of the exclusive right to a registered trademark based on a legally effective judgment, another court will request the same notice

If the registered trademark is to be preserved in the name of preserving the property of the original trademark owner, and there is no right pledge

I agree with the handling opinions proposed in your letter from the office, that is, to assist in the execution of the prior

Adopt the judgment document of the court that takes enforcement measures, and inform the court that subsequently takes

preservation measures of the assistance in enforcement.

3. Regarding the court’s decision. After preserving a registered trademark, another court declares that the registrant has entered bankruptcy proceedings and requires your office to further assist in preserving the registered trademark.

According to the "People's Republic of China and the People's Republic of China" Article 11 of the National Enterprise Bankruptcy Law (Trial) stipulates that after the People's Court accepts a bankruptcy case, other civil enforcement proceedings against the debtor's property must be suspended. Relevant cases should be handled in accordance with this provision. Regarding specific handling issues, your office can inform the court hearing the bankruptcy case that the registered trademark has been preserved. Notify the court that has previously taken preservation measures to lift the preservation measures on its own. After receiving the notice regarding the lifting of property preservation measures, your bureau should immediately assist

in the execution of the court hearing the bankruptcy case. Ruling. Your office may also inform the court that has previously taken preservation measures regarding the trademark registrant’s entry into bankruptcy proceedings, and it may decide on its own to terminate the preservation measures.

IV. Regarding the issue of whether the provisions of Article 21 of the Implementing Rules of the Trademark Law should be applied when the court decides to use a registered trademark as the subject matter of enforcement

According to Article 21 of the Implementing Rules of the Trademark Law According to the provisions of Article 21, when the exclusive right to a registered trademark is transferred, the trademark registrant must transfer the same or similar trademark registered on the same type or similar goods. In the process of enforcing the exclusive right to use a registered trademark, the court shall, in accordance with the above-mentioned principles, determine whether the registered trademark and the identical or similar goods are identical or similar. Trademarks will be evaluated, auctioned, sold, etc. together, and when enforcement measures are taken, it will be ruled that identical or similar registered trademarks will be enforced together. If the Trademark Office

receives the court's ruling on the transfer of a registered trademark and finds that the above-mentioned content is not found, it may

notify the enforcement court and the enforcement court will supplement the ruling before assisting in enforcement.

The specific cases involved in the letter can be handled in accordance with the above opinions.

This is a reply.

January 9, 2002

Attachment:

The Trademark Office of the State Administration for Industry and Commerce concerning issues related to property preservation of registered trademark rights Letter

Trademark Change (2001) No. 66

The Third Civil Trial Tribunal of the Supreme People’s Court:

Since January 2001, our office has, in accordance with the "Supreme People's Court" The Court's Interpretation on Property Preservation of Registered Trademark Rights actively assists local people's courts in carrying out property preservation work on registered trademark rights.

In more than half a year, it has assisted in enforcement litigation

more than 380 preservation cases involving more than 1,300 registered trademarks. However, at work, we

also encountered situations not covered in the explanation:

1. Different courts seized the same registered trademark on the same day. For example, the Yinan County People's Court of Shandong Province and the Hedong District People's Court of Linyi City, Shandong Province simultaneously sent notices of assistance in enforcement to our bureau on April 28, 2001, requesting Seize the same trademark of Shandong Huari Group

head office. According to the relevant judicial interpretation of the Supreme People's Court that cannot be repeated

seizures, our bureau has asked the two courts to negotiate a solution within the prescribed time limit. Otherwise,

will not provide assistance. implement.

2. Court A will seal up the registered trademark that our office is undergoing transfer registration procedures based on the effective ruling of Court B.

For example, the Intermediate People's Court of Zibo City, Shandong Province, after civil mediation, issued a notice of assistance in enforcement to our bureau on May 30, 2001, requesting that the previously sealed "topple well" "The trademark was transferred from Shandong Tatai Group Winery to Shandong Taojing Co., Ltd., and the corresponding transfer procedures were completed with our bureau. During the transfer registration process, the People's Court of Qingbaijiang District, Chengdu City, Sichuan Province requested the seizure of the above-mentioned trademarks that are still under the name of Shandong Taotaojing Group Winery. Our bureau believes that the civil mediation letter of the Shandong Zibo Intermediate People's Court is an effective legal decision. Therefore, the Qingbaijiang District People's Court of Chengdu City, Sichuan Province did not assist in the implementation of its request.

3. After court B declares bankruptcy to the registrant of the registered trademark that has been sealed by court A, it requires preservation measures for the relevant registered trademark that has been sealed by court A. For example,

The Intermediate People's Court of Suzhou City, Jiangsu Province sent an enforcement notice of assistance to our bureau on April 10, 2001.

Trademarks are subject to property protection

. The People's Court of Xinghua City, Jiangsu Province sent a notice of assistance in enforcement

to our bureau on July 30, 2001, saying that the court announced on July 25, 2001 that Xinghua Bearing Factory of Jiangsu Province

Enter bankruptcy proceedings and request our bureau to implement preservation measures for the factory’s registered trademark. According to

Article 11 of the "Enterprise Bankruptcy Law of the People's Republic of China (Trial)", whether the Suzhou Intermediate People's Court of Jiangsu Province's decision on "flying" should be terminated

The seizure of the "month" trademark.

4. When the court decides to transfer a registered trademark, whether it should comply with the provisions of the Trademark Law that "identical or similar trademarks should

be handled together." According to the provisions of the Trademark Law

when applying for trademark transfer registration, identical or similar trademarks should be processed together.

Therefore, when the court rules to transfer a registered trademark, it should rule to transfer the same or similar registered trademark

together. If the same or similar trademarks are transferred together without a ruling, our office will not

assist in the execution.

Courts in various places have different understandings and views on the above issues than our Bureau. Therefore, it is recommended that your court provide opinions on the above issues so that our office can better assist the People's Court in the property preservation of registered trademark rights.

On November 8, 2001, the Economic Tribunal of the High People's Court issued a statement on whether the party providing guarantee for the respondent during property preservation should specify its obligations in the judgment or mediation letter and Can the guarantor's property be directly executed during the execution procedure?

The Economic Tribunal of the Supreme People's Court asked whether the parties who provide guarantees for the respondent during property preservation should specify their obligations in the judgment or mediation letter. Reply to the obligations and whether the guarantor’s property can be directly enforced during the execution procedure

Economic Tribunal of the Supreme People’s Court

Shandong Higher People’s Court:

Your Court Lu Gao Fa Lian [1994] No. 59 for instructions received.

After research, the reply is as follows:

During the trial of the case, when the People's Court decides to take property preservation measures, and the guarantor provides guarantee for the respondent, the People's Court does not need to specify the guarantor's obligations in the judgment or mediation letter. . After the case is concluded, the property of the guaranteed party shall be executed first. If the guaranteed party has no property for execution or its property is insufficient to pay off the debt, the People's Court may directly rule that the guarantor shall bear liability within the scope of the guarantee.