CHINA Law and Practice Contributed by: Hans She, Muran Sun, Yichen Zhou and Herman Zhang, Fangda Partners
for other evidence preservation rulings depends on the specific circumstances. Parties seeking evidence preservation should submit their application to the People’s Court before the expiration of the evidential submis- sion deadline. The application should outline the basic details of the evidence requiring preserva- tion, the reasons for seeking preservation, and the proposed preservation measures. The court typically assesses the potential risk of evidence loss or unavailability from several angles: • whether the applicant has provided prelimi- nary evidence supporting their claim; • if the evidence can be gathered by the appli- cant themselves; • the likelihood of evidence loss or future unavailability and its impact on proving the relevant facts; and • the impact of potential preservation measures on the custodian of the evidence. If evidence preservation might cause harm to others, the People’s Court should demand the applicant to provide appropriate guarantees. 2.11 Initial Pleading Standards In China, whether in intellectual property pro- ceedings or non-intellectual property proceed- ings, lawsuits must meet the following condi- tions: • the plaintiff must be a citizen, legal person, or other organisation directly related to the case; • there must be a clearly identified defendant; • specific claims, facts, and reasons must be presented; and • the case must fall within the jurisdiction of the People’s Court and be within the scope of civil litigation.
Once these conditions are met, the People’s Court will accept the case without examining its substantive content. After the People’s Court accepts the case, parties can negotiate or the People’s Court can set a deadline for evidence submission, allowing the parties to continue pre- senting evidence within that period. Before the conclusion of the first-instance court debate, parties may change their claims. During the second-instance proceedings, if parties wish to add new litigation claims, the People’s Court of the second instance may, based on the principle of voluntary participation, mediate on the newly added claims or counterclaims. If mediation fails, the parties are informed to file a separate lawsuit. If both parties agree for the People’s Court of the second instance to adjudicate these matters together, the court may issue a joint rul- ing on them. 2.12 Representative or Collective Action In China, the Civil Procedure Law provides that, where the subject matter of the litigation is the same type and a party or both parties to a law- suit comprise(s) multiple persons – generally more than ten – a representative may be elected to participate in the proceedings. However, this is extremely rare in intellectual property-type cases, considering that the defendant’s behav- iour is usually different in IP litigation, making it difficult to satisfy the constituent elements of the representative action. For class action, there is currently no specific legal provision relating to it. In addition, the People’s Procuratorate, in ful- filling its duties, can initiate civil public interest litigation to address acts infringing upon societal public interests within the realm of intellectual property. For instance, if a party counterfeits other videos without obtaining permission from the registered trade mark rights-holder, resulting in potential safety hazards for unspecified pur-
109 CHAMBERS.COM
Powered by FlippingBook