The Study of Preliminary Injunction：From the Perspectives of Corporate Control Fights

• Main Authors: HUANG, TZU-YING, 黃子盈
• Other Authors: 姜世明
• Format: Others
• Language: zh-TW
• Published: 2016
• Online Access: http://ndltd.ncl.edu.tw/handle/5wv86y

碩士 === 東吳大學 === 法律學系 === 104 === 　Preliminary injunction was added into the Civil Procedure Act since 2003, and became one of the independent remedies of the provisional remedies procedures. It can be used as a method for creditors to satisfy their claims in advance. A preliminary injunction is a temporary order made by a court in the early stages of a lawsuit or at the request of one party, which prevents the other party from pursuing a particular course of conduct, or prohibits the parties from doing an act in order to preserve the status quo until a pending ruling or outcome. In actual practice, it has been used as a method to avoid suffering disadvantages while the creditors wait for the results of the pending action. 　In a stock corporation, the board of directors is elected by the shareholders and is the highest authority in the management of the corporation. That is to say, between the factional struggle in a corporation, which faction get the higher percentage of board seats can get the right of corporate controlling. Preliminary injunction is often used to corporate control fights in these years, such as how to prohibit directors from carrying out their duty, how to prohibit directors from exercising their voting rights, etc. Because of the indistinct rule of standards under article 538 of the Civil Procedure Act, the standards for the court to grant preliminary injunctions remain uncertain. According to paragraph 2 of article 22 under Intellectual Property Case Adjudication Act, an applicant seeking an injunction maintaining the temporary status quo shall provide a preliminary showing proving it is necessary to prevent material harm or imminent danger or other similar circumstances with regard to the legal relation in dispute. The court shall dismiss the application if the preliminary showing is insufficient. The standards are similar to the four-factors test in US court. The party seeking the preliminary injunction must demonstrate that there is a substantial likelihood of success on the merits of the case, that they face a substantial threat of irreparable damage or injury if the injunction is not granted, that the balance of harms weighs in favor of the party seeking the preliminary injunction, and the grant of an injunction would serve the public interest. Therefore, the standards under the intellectual property case adjudication act are more concrete and clear than the general standards. Consequently, if the case that the quality or condition is the same as intellectual property case, the examination guidelines are appropriate to be quoted. 　This paper collected some related cases in recent years, and analyzed the standards of court. Besides the nature and functions of preliminary injunctions, we notice that the standards for the court to grant preliminary injunctions are highly uncertain, including how much should a preliminary showing of the claim and the standards of providing a security. Accordingly, the court shall consult the application in intellectual property case, consider the reasonable probability of success in the merits for granting preliminary injunction. For the legal stability and predictability, it is necessary to develop the judicial standards of preliminary injunction.