知识产权领域行为保全制度审查要件的反思与优化
Rethinking and Optimization of Review Elements of Act Preservation System in Intellectual Property Field

目前知识产权领域案件多发，侵权形式多样。为了从事先预防的角度为民事权利提供临时保护，我国规定了行为保全制度。尽管在知识产权领域已颁布了更为详细的规定，司法实践中仍然存在着当事人不会用，法院不愿用的窘境。究其原因，是知识产权领域行为保全制度审查要件规定模糊、内部逻辑混乱，这也在典型案例中有所体现。对知识产权领域行为保全的审查，应结合行为保全的作用和性质，和知识产权领域纠纷的特殊性来确定。具体应将审查重点放在三方面：事实基础与法律依据、侵权损害的紧迫性及公共利益。
At present, there are many cases in the field of intellectual property rights and various forms of infringement. In order to provide temporary protection for civil rights from the perspective of pre-prevention, our country stipulates the act preservation system. Although more detailed regulations have been promulgated in the field of intellectual property, there is still a dilemma in judicial practice that parties do not use them and courts do not want to use them. The reason is that the examination requirements of act preservation system in intellectual property field are vague and the internal logic is confused, which is also reflected in typical cases. The examination of act preservation in the field of intellectual property rights should be determined according to the function and nature of act preservation and the particularity of disputes in the field of intellectual property rights. Specifically, the review should focus on three aspects: factual basis and legal basis, the urgency of tort damage and public interest.