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and applicability of these rights and methods by establishing a propor-
tional and engaged solutions for the need for legal protection.
Provisions, Innovations and Their Legal Justifications
Relating to Preliminary Injunctions
“Preliminary Injunction” is provided in the first Article below
Section 10 of the CCP entitled, “Provisional Legal Protection”. Article
No. 389 CCP stipulates the conditions for granting a preliminary
injunction. Pursuant to this article, in order to grant a preliminary
injunction, there must be a concern that an inconvenience or a serious
damage would occur as a result of a delay, or a change in the current
situation, which would cause a difficulty or impossibility related to the
exercise of a right.
The Request for a Preliminary Injunction
Article No. 390 regulates the request for a preliminary injunction.
Accordingly, before the main lawsuit is filed, a preliminary injunction
can be requested from the court, which has authorization and compe-
tence to hear the main lawsuit. If the main lawsuit was already filed, a
preliminary injunction must be requested from the court during the lit-
igation procedure. In this respect, there is a difference between the
CCP and Code No. 1086, which was annulled. As a consequence, pre-
liminary injunction requests from courts which have no relation to the
concrete case; vagueness and abuses regarding the authorization and
competence of these courts, which may render preliminary injunctions,
are prevented.
The Second Paragraph of Article 390 sets forth that, a judge may
grant a preliminary injunction without listening to the other party,
where there is an obligation to protect the rights of the claimant imme-
diately. Although the right to be heard is an essential, unalienable right,
it will be necessary to consider immediate provisional legal protections
in some cases; this may mean that informing the other party could
result in diminishing the effectiveness of provisional protections.
Therefore, a judge has the discretion to grant a preliminary injunction,
depending on the conditions of the concrete case, without the obliga-
tion to hear from the other party.
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