我國標準必要專利國際平行訴訟中的禁訴令應對研究

Study on the Construction of Anti-suit Injunction System of China in Transnational Litigation of Standard Essential Patents

近年來，標準必要專利國際訴訟中，各國法院，尤其是英美法院頻繁頒發禁訴令，並引發了禁訴令與反禁訴令的博弈，我國禁訴令制度的缺失，不僅使得我國企業在涉外民事訴訟中，尤其是在涉外知識産權訴訟中非常被動，而且也使得我國的司法主權和法院管轄權受到嚴重干涉和威脅。我國有必要建立禁訴令制度給予必要反制，建議參考國外法院實踐，對於禁訴令的簽發標準兼顧靈活性和確定性，考量意思自治原則、最密切聯繫原則和國際禮讓等原則，同時兼國我國公共利益保護、外國訴訟是否存在無理糾纏或者壓迫性、禁訴令是否可以控制被申請人等因素，在一般性原則的基礎上，明確列舉具體案件類型之外，附加兜底性條款，避免出現不方便管轄原則的機械性，方便法官進行個案分析，增加法官的自由裁量權，讓法官在個案中衡量各種各樣的因素，如是否爲同一個訴訟標的、當事人是否存在濫用訴訟程序、是否屬￿無理纏訟或壓迫性的訴訟行爲、是否有失公平，以及意思自治和國際禮讓的平衡問題等。

In recent years, in the international litigation of standard essential patents, the courts of various countries, especially the courts of the United Kingdom and the United States, have frequently issued anti-suit injunctions, which has triggered a game between anti-suit injunctions and counter-anti-suit injunctions. The lack of anti-suit system in China not only makes Chinese enterprises very passive in foreign-related civil litigation, especially in foreign-related intellectual property litigation, but also seriously interferes with and threatens China’s judicial sovereignty and court jurisdiction. It is imperative for China to establish anti-suit injunction system to give necessary countermeasures. It is recommended to refer to the practice of foreign courts. The standards for issuing anti-suit injunctions should balance both flexibility and certainty, give consideration to the principle of autonomy of will, the principle of closest connection, as well as the principle of international comity. Besides, the factors such as the protection of public interest of China, whether the foreign litigation is vexatious or oppressive, whether anti-suit injunction can control the respondent etc. shall also be taken into account. On the basis of general principles, it is suggested to clearly enumerate the specific types of cases, supplemented by miscellaneous provisions in order to avoid the rigidity of the doctrine of forum non conveniens, so that judges have more discretion and are allowed to weigh various factors in individual cases, such as whether it is the same subject matter of litigation, whether the parties have abused litigation procedures, whether it is vexatious or oppressive litigation, whether there is alack of fairness, as well as the balance between autonomy of will and international comity.