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Intellectual Property and Commercial Court



Decision No. 2008-Min-Zhuan-Kang-7
Date September 30, 2008
Decision Highlight

The newly revised Article 526, paragraph 2 of the Civil Procedural Law has changed the old provision “although the creditor has not make a preliminary showing as required by the previous paragraph, if he has provided security as required by the court to pay for the debtor’s likely damages, the court may grant a provisional attachment.” The new provision is “if the showing is inadequate, yet the creditor states his willingness to provide security and the court deems this proper, the court may assess an amount for the security and grant the provisional attachment after the bond is posted” – this provision echoes paragraph 1 of the same Article: “the petition and ground for a provisional attachment should be shown.” Thus, if the creditor has not shown petition and ground for a provisional attachment and even if he is willing to post the security bond as set by the court to remedy the likely damages of the debtor, the court may not grant the order. The court can grant the order only when: first, the creditor has made the showing but the showing is inadequate; second, the creditor states his willingness to post the bond or the court consider this to be proper; and third, the bond has been posted. “Proving” and “showing” are similar to the extent that both are “submitting evidence,” but the two differs as to the substantiality of evidence. The term “evidence” means objectively existing persons, things, and matters, which are related to the controversy. Both the plaintiff and the defendant are the parties to the controversy; their statements are subjective opinions and not objectively existing persons, things, and matters. The parties to the controversy may not “producing evidence” by themselves. Hence the judgment made by a party to the controversy, based on his own professional knowledge, regarding the infringement by the other party can at most be considered the statement of his own opinions and may not become evidence. The party bringing the interim appeal in this case alleged that he has provided the showing because he, based on his so-called professional knowledge, determined that the air filter manufactured by the other party infringed his patent. This is to misconceive one’s own opinion as evidence and hence to think one has made the evidentiary showing. In reality, he has not provided any evidence. Since no evidence has been provided, the Court needs not consider whether the showing is inadequate and thus to be replaced by security.

Related Provision Article 526 of the Code of Civil Procedure
  • Release Date:2020-11-13
  • Update:2020-12-07