Cross-Border Licensing Mechanics under PRC Civil Code Regulations
Cross-border licensing into China requires navigating PRC Civil Code rules, securing MOFCOM and CNIPA filings, and enforcing statutory indemnity limits.
Evidence Preservation Order Article 104
Meaning
Judicial remedy permits a court to secure fragile or perishable evidence before or during a civil lawsuit to prevent its destruction, loss, or intentional alteration by a party. Evidence preservation order article 104 is a procedural tool used by Chinese courts to ensure that the factual basis of a case remains intact until it can be properly examined. It applies in situations where the passage of time or the actions of a defendant would make it impossible to obtain the evidence later.
The rule covers physical objects, electronic data, accounting records and the testimony of witnesses who are about to leave the country. It establishes a boundary where the court can intervene in the private property of a party to serve the interests of justice. This mechanism is particularly common in patent and trade secret cases where the evidence of infringement is hidden inside a factory or a computer system.
Urgent Application
Procedural path for obtaining the order begins with a formal request from the plaintiff, who must demonstrate that the evidence is at high risk of being lost. The applicant must provide a clear description of the evidence, its location and its relevance to the claims being made in the lawsuit. Courts often require this application to be made before the defendant is notified of the legal action, preventing them from deleting files or moving machinery once they realize they are being sued.
The judge will evaluate whether the potential harm to the plaintiff outweighs the disruption to the defendant’s business. In urgent cases, the court must make a ruling within forty-eight hours of receiving the application and the required security deposit. This speed is essential for the effectiveness of the remedy, as it allows the court to act before the defendant can respond.
Execution Procedure
Operational phase of the preservation involves court officials physically visiting the site to seize, photograph or copy the evidence. The court may seal a piece of equipment, download a database or take samples of a chemical product to be held in a secure facility. Judges often bring technical experts with them to ensure that the collection of electronic evidence is done correctly and without damaging the original data.
A detailed inventory of everything preserved is created on-site and signed by the court officials and the representatives of the defendant. This process is mandatory, and any party that interferes with the execution of the order can face fines or detention. The preserved evidence is then kept under the control of the court until the trial begins, ensuring that neither side can tamper with it.
This creates a reliable foundation for the judicial determination of the facts.
Liability Bond
Financial requirement for the applicant involves the payment of a security deposit or the provision of a guarantee to cover potential damages to the defendant. If the court later determines that the preservation order was requested in bad faith or without merit, the defendant can use this bond to recover their losses. The amount of the security is usually determined by the value of the evidence being preserved and the estimated cost of any business interruption.
This bond acts as a deterrent against frivolous or malicious applications that are intended only to harass a competitor. It balances the plaintiff’s need for evidence with the defendant’s right to operate their business without undue interference. Once the trial is over and the order is found to have been justified, the bond is returned to the applicant.
This financial mechanism ensures that the judicial system remains fair to both parties in the early stages of a dispute.