CHINA Law and Practice Contributed by: Peibing Qi, Na Gao and Shanshan Heng, Fangda Partners
6.4 Security for Costs In China, court and arbitration fees must be paid in advance by the plaintiff or applicant; the other party may not apply for security for costs. 6.5 Interim Injunctions Interim Injunctions (Conduct Preservation) Parties may apply for interim injunctions (conduct pres- ervation). In intellectual property litigation, the applica- tion of interim injunctions is relatively widespread. In other types of cases, the number of instances in which courts grant such relief is comparatively limited. Factors for Granting Interim Injunctions Courts typically grant interim injunctions where the following conditions are satisfied: • the applicant is able to provide prima facie evi- dence demonstrating that its rights have been or are about to be infringed; • the circumstances are urgent, and failure to imme- diately grant relief would cause irreparable harm to its lawful interests; • the harm caused to the applicant if relief is not granted would exceed the harm to the respondent if it is granted; and • the granting of such relief would not be contrary to the public interest. 6.6 Summary Judgment In China, there exists no “summary judgment” pro- cedure as understood in the common law tradition. For cases where the facts are clear, the rights and obligations are well-defined, and the controversy is not substantial, the court may apply summary proce- dures, which feature a shorter adjudication period and more streamlined trial formalities. 7. Mass Claims and Class Actions 7.1 Procedural Mechanisms In China, class actions are referred to as representa- tive actions, which are divided into ordinary repre- sentative actions and special representative actions.
Ordinary Representative Actions Where one party to a joint action involves a large num- ber of persons, PRC law permits the parties to elect representatives to conduct the litigation. The litigation conduct of the representatives is binding upon the parties they represent. Ordinary representative actions adopt the rule of “opt-in”. That is, eligible plaintiffs must affirmatively register with the court to join the lawsuit, and silence or inaction constitutes a decision not to participate and leaves the plaintiffs free to pur- sue a separate action. Special Representative Actions These apply primarily in the securities field. Generally, 50 or more investors may entrust an investor protec- tion institution to participate in the litigation as the representative. Special representative actions adopt the rule of “opt-out”. That is, the investor protection institution acting as representative will directly register the eligible litigants based on the list confirmed by the securities registration and clearing institution. All eligible litigants on the list are deemed to have joined the action unless they explicitly declare their intention to opt out. 7.2 Standing Requirements Standing to Initiate an Ordinary Representative Action The number of plaintiffs must exceed ten, and the number of representatives shall be between two and five. Standing to Participate in an Ordinary Representative Action For representative actions where the number of plain- tiffs is unascertainable at the time of filing, the court may issue a public notice, directing eligible litigants to register with the court within a specified period. An eligible litigant who registers with the court shall pro- vide proof of the legal relationship with the opposing party and the damage suffered. If such proof cannot be furnished, the court shall deny the registration, and the eligible litigant may file a separate action. 7.3 Relief The primary type of relief available in class actions is monetary damages. Taking the most common form, special representative actions in the securities field
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