On The Evidence Collection In China's Tort Litigation Of Intellectual Property

In the tort litigation of intellectual property, evidences provided by the parties play an important part in the recognition of infringement and the determination of the amount of final damages. Whether evidence collection is full, comprehensive or accurate is directly related to judgment of the whole case and application of the law. Therefore, Evidence collection in the tort litigation of intellectual property is of great importance, and it is self-evident.In the tort litigation of intellectual property, evidence collection is very hard for the right owner, because the majority of alleged tort-feasor knew their infringement of intellectual property was illegal, and therefore they carried out surreptitiously or even changed location constantly in order to escape punished, relevant evidence in regard to the alleged infringement is apt to destroy and distort; and at the same time the tort-feasor have a sensitive sense of guard against risks, if the right owner carelessly breathe a word of investigate and deal with infringement, the tort-feasor may destroy the relevant proof or transfer them before the right owner takes measures to perpetuate the evidence .So that could influence the recognition of infringement, and even if the infringement is affirmed, it's so difficult for the right owner to provide evidence to prove the extent of damages. Furthermore, there is the possibility that compensation to the right owner is not enough and crackdown on the infringement is week. In the light of this, the thesis falls into five parts to deal with evidence collection of China's tort litigation of intellectual property.Part one, the evidence collection not only reflect the parties' substantial participation in the proceedings, but also strongly support fair verdict to make by judge. And then the writer elaborates evidence collection's specificity in the field of intellectual property from three aspects: the tortious act is hidden and relevant proof is unstable and apt to destroy because of the immateriality and publicity of intellectual property object, and highly technical characteristics of intellectual property, all of this put forward higher requirements for the parties to collect evidence. And the "dual track" protection makes the evidence from administrative procedures useful source for the later litigation.Part two, the writer analyzes the basis of legal theory on the evidence collection in the tort litigation of intellectual property. Generally, judgment-making is on premise of recognition of facts, so "search for truth" gives an impetus for the parties to collect evidence. As to the different requirement that the adversary system and the cooperative system need for the facts, the author accept "sure truth" created with the help of the parties and the judge. And on the basis of intellectual property's balance of interests, it is necessary to reinforce judge's burden to help the parties collect evidence, although the parties take the main responsibility to collect evidence in the cooperative system.Part three, the writer concretely introduces the extents and methods of evidence collection in the tort litigation of intellectual property, including the degree of the right owner and the alleged tort-feasor, which indicates that evidence collection in the tort litigation of intellectual property has a characteristic of universality and professionalism.Part four, the writer makes a critical analysis on the status quo of evidence collection in the tort litigation of intellectual property from the legislative and practical aspects, pointing out the deficiencies in the legislation, which is not conducive to the parties collecting evidence. In respect to practice, the author mainly deals with the entrapped evidence collection and the security of evidence collection in the tort litigation of intellectual property.Part five, the writer puts forward specific suggestions as to evidence collection in the tort litigation of intellectual property. The legal ideas contain the right guarantee, prohibiting abuse of right and intellectual property's balance of interests. There are five concrete suggestions on evidence collection in order to become a boon to evidence collection in the tort litigation of intellectual property.