2010 Judicial Examination Civil Litigation Handouts\Notes: Property Preservation and Preliminary Execution

1. Comparison of Pre-litigation Property Preservation and Property Preservation During Litigation

Comparative Content Pre-litigation Property Preservation Property Preservation During Litigation

Adopted by the People's Court that has jurisdiction over different property locations; in cases where the parties appeal against the first-instance judgment, the second-instance People's Court receives the report Previously, if property preservation measures needed to be taken, they were taken by the People's Court of first instance.

In different ways, the interested party applies for the application or the court takes action ex officio

If the guarantee is different, a guarantee should be provided. The court can order the party to provide a guarantee; however, in subrogation litigation, the creditor requests the People's Court If preservation measures are taken against the property of the sub-debtor, corresponding property guarantee shall be provided. < /p>

Limited to the scope of the request or property related to the case

3. Property preservation measures

Sealing, detaining, freezing or other methods prescribed by law may be adopted ( Article 94 of the Civil Procedure Law)

The mortgaged property and lien property can be preserved, but the mortgagee and lien holder have priority to be repaid (Opinion Article 102)

The application for preservation can be made The person's due creditor's rights (Opinion 105)

IV. Compensation for wrong application

V. Behavioral preservation

Article 49 of the Copyright Law Paragraph 1 stipulates that if a copyright owner or copyright-related right holder has evidence to prove that others are committing or about to commit acts that infringe upon their rights, and if they are not stopped in time, their legitimate rights and interests will be irreparably damaged, they may file a lawsuit before filing a lawsuit. The People's Court applies to take measures to order the cessation of relevant behavior and property preservation. Paragraph 2 of this article stipulates that when the people's court handles the application in the preceding paragraph, it shall apply the provisions of Articles 93 to 96 and 99 of the Civil Procedure Law.

Article 61, paragraph 1, of the Patent Law and Article 57, paragraph 1, of the Trademark Law are similar.

6. Preliminary execution

Scope of cases for preliminary execution (Article 97 of the Civil Procedure Law)

Recovery of alimony, child support, child care, Cases involving pensions and medical expenses;

Cases for recovery of labor remuneration;

Cases that require execution in advance due to urgent circumstances: cases where the infringement needs to be stopped immediately and obstructions eliminated; cases where it is necessary to immediately To stop a certain behavior; to immediately return the payment for the purchase of production raw materials and production tools; to pursue insurance claims that are urgently needed to resume production and operations. (Opinion 107)

Note: An important condition for prior execution is a clear relationship between rights and obligations.