Civil Procedure Flow Chart Available

Below is a link to a civil procedure flow chart which I hope will help foreign lawyers better understand China’s Civil Procedure Law. There are Chinese websites  that have also posted flow charts for Civil Procedure Law (CPL) milestones that Chinese readers may wish to consult.

I am particularly interested in highlighting areas where foreigners should be concerned because their impact may be poorly understood, such as rules or average time frames regarding service of process or length of time that a trial might take if there is a foreign element.

If readers have any suggestions on how this chart can be improved please post here or email to me at chinaipr@yahoo.com.

Draft JI Issued by SPC for Action Preservation Measures in IP and Competition Law Matters

On February 26, the Supreme People’s Court published for public Comment a draft SPC Judicial Interpretation on Concrete Issues in Application of Law in Determination of Action Preservation Measures in Intellectual Property and Competition Controversies (最高人民法院关于审查知识产权与竞争纠纷行为保全案件适用法律若干问题的解释)(征求意见稿). Comments are due Mach 30.  The SPC also issued an accompanying explanation of the draft JI.

When final, this JI will supersede prior JI’s involving preliminary injunctions in patent and trademark cases, which also served as reference for copyright matters.  The JI also further solidifies the extension of the civil procedure law reforms involving provisional measures to trade secrets, while also clarifying its expansion to civil competition law matters. The JI may open up the possibility of greater use of the civil courts for antimonopoly law litigation.

“Action Preservation” measures in the draft include measures to require a party to act by the court, or to prohibit them from acting. The draft JI specifically clarifies the circumstances by which licensees (exclusive or non-exclusive) may seek injunctive relief.   The time frame for rendering a preliminary injunction decision is a non-emergency matter may be as long as 30 days.  The draft JI also details such aspects of preliminary injunctions as the jurisdiction of the court, what constitutes “irreparable harm”, nature of guarantees, handling of appeals of cases and handling of oppositions to provisional measures, the effect of changed circumstances, fees, and other matters.

Crossing the River by Feeling the IP Stones: How China’s Civil Procedure System Benefits from Reforms Made in IP Civil Litigation

On Aug 31st 2012, the NPC passed the revised Civil Procedure Law.  This is th  e third time that the CPL has been amended since it was first enacted in 1991.  The new law will go into effect on January 1, 2013.  The CPL is only starting to get the attention in the English language IP media (See He Jing’s article and Mondaq). Continue reading