CHINA Law and Practice Contributed by: Chuanhong Long, Ji Liu and Xiao Jin, CCPIT Patent and Trademark Law Office
summoned, a default judgment can be made. If a defendant’s attendance is mandatory and they fail to appear without valid justification, even after two summonses, the court may compel appearance through a warrant. 3.7 Representative or Collective Actions Where a large number of obligees may join a collective action but the number of obligees has not been determined at the time of the action, the court may issue a public announcement explaining the case and the claim and notify the obligees to register with the court within a cer- tain period of time. As such, the Chinese system operates on an “opt-in” basis for class actions. The obligees registered with the court may elect representatives to participate in the trial. If no representative can be elected, the people’s court may suggest one or more representatives in the trial. Actions taken by a representative have the same legal effect as if undertaken by the obligees they represent. However, should the representative seek to amend, waive the claims, acknowledge the claims of the opposing party, or agree to a settlement, they are required to obtain the writ- ten consent of the parties they represent. The judgments and rulings made by the peo- ple’s courts in the class action are binding on all registered co-plaintiffs. Obligees who have not joined the action retain the right to bring indi- vidual lawsuits on identical grounds within the limitation period, and the previous judgment may be considered in these subsequent cases. 3.8 Requirements for Cost Estimate According to the All China Lawyers Association, lawyers and clients should reach an agreement
on the power of attorney, attorney fees and other terms of the entrusted matters. The Association provides guidance on the attor- ney fees for various types of cases and prac- tices for public reference. Of course, the specific fees and costs may vary significantly among law firms. 4. Pre-trial Proceedings 4.1 Interim Applications/Motions The interim measures available in China include: The party to a dispute may apply for prelimi- nary injunctions before or during the litigation proceedings. The preliminary injunctions may require a party to perform, or refrain from per- forming, a particular act. The following four fac- tors are considered by the court before issuing a preliminary injunction: • whether the act being committed or about to be committed by the respondent constitutes an infringement of the lawful rights or inter- ests of the applicant; • whether denial of the injunction would cause irreparable damage to the applicant; • the adequacy of security provided by the applicant; and • whether the injunction would harm the public interest. • preliminary injunctions; • preservation of property; • preservation of evidence; and • advance execution. Preliminary Injunctions
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