CHINA Law and Practice Contributed by: Chuanhong Long, Ji Liu and Xiao Jin, CCPIT Patent and Trademark Law Office
The preliminary injunction application will be rejected if the applicant refuses to provide secu- rity. Preservation of Property Property can be preserved by the court by means of seizure, impounding, freezing of accounts or any other means prescribed by the law. This interim measure can be applied before or dur- ing the litigation proceedings. The preservation of property is allowed if the court determines that it may be difficult or impossible to enforce a judgment due to the bad faith conduct of a party. The court may require the applicant to provide security for a property preservation application. The application will be rejected if the applicant The court may issue an evidence preservation order before or during litigation proceedings. The order can be issued upon the request of a party or on the court’s own initiative during the proceedings. Before trial or arbitration, the order is issued generally upon the applicant’s request. The rationale for these orders is the potential destruction of evidence or the difficulty of its lat- er procurement. Notably, no security is required for the preservation of evidence. Advance Execution The people’s court may, upon the application of the parties, order advance execution in the fol- lowing cases: • claims for alimony, maintenance, pensions or medical expenses; • compensation for labour claims; or refuses to provide security. Preservation of Evidence
• where advance execution is required due to urgent circumstances. The factors considered by the people’s court when deciding to order advance execution include: • a clear delineation of the parties’ rights and obligations, where non-implementation could gravely disrupt the applicant’s livelihood or business operation; and • the respondent’s ability to fulfil the execution. The people’s court may order the applicant to provide security. If the applicant fails to provide security, the application will be rejected. If the applicant loses the case, the property losses suffered by the respondent as a result of the advance execution must be compensated. 4.2 Early Judgment Applications If the plaintiff files multiple claims, the court may decide one or more of the claims if the facts are clear enough for the court to make the decision on those claims. However, it is not common in practice. 4.3 Dispositive Motions Before trial, the plaintiff may change, withdraw, or waive their claims in the lawsuit. The defend- ant has the right to contest the jurisdiction, admit or refute the plaintiff’s claims and bring coun- terclaims in the lawsuit. Both parties have the right to settle in order to end the lawsuit. Chinese courts usually ask the parties before trial if they are willing to settle. Where mediation is possible, the courts usually actively co-ordinate and facili- tate the parties to reach a settlement agreement.
294 CHAMBERS.COM
Powered by FlippingBook