A Research On The Judicial Identification In Trade Secret Case

The complexity and professional features of trade secret cases bring great difficulty to investigation and trial work, which also determines the important role of judicial identification in dealing with trade secrets cases. Although judicial identification is not the only mean to identify the technical facts, under the current judicial environment, judicial identification is still the main way to identify technical facts in trade secrets cases.This article takes the judicial identification in trade secret cases as the main object of study, and tries to provide a theoretical reference for judicial practice through emphatically discussing the existing problems of the judicial identification in trade secrets cases, and proposing relating countermeasures. In order to elaborate on these issues, this article is divided into four parts.The first part is the legal definition of trade secrets. This section is an overview of the trade secrets, to pave the way for the discussion later. This part starts from the definition of trade secret, then analyzes elements of trade secret, determines the scope, and at last discusses the legal protection of commercial secrets.The second part focuses on the necessity of taking judicial identification for trade secret cases and the main content of judicial identification of trade secret cases. The necessity of judicial identification in trade secret cases is decided by the burden of proof of the parties in cases. Professionality and complexity of the trade secret cases make the judge’s judgment difficult. The scope of trade secrets judicial identification is determined by the specific circumstances of the case, but only relates to the technical fact, that is " whether the relevant technical information is known to the public", "whether the technical information between the two sides involved are the same or substantially the same". During the process of identification, examiners should follow a fair, objective, neutral criteria, and be in accordance with established operating norms.The third part mainly discusses problems of judicial identification in trade secret and why the problems exist. This part and the fourth part are the most important parts of this article. Current problems of judicial identification in trade secret cases include: The period of a judicial expertise is very long, usually two mouths; repeating and overlapping identification occur frequently because process of judicial identification can be initiated by public security organs, procuratorates and courts; the variability of scope of trade secret judicial identification lead to entrusted matters go beyond the scope of identification or identification institutions exceed the scope of identification; the high identification fee and uncertain paying party result in that parties are unwilling to pay the fee in advance; conclusion of identification is always affected because of non-standard operations which caused by the lack of standard; The credibility of identification conclusion is various since the different qualification of identification institutions and examiners, and the different materials submitted by courts or other investigative organizations.The fourth part mainly proposes the solutions to the problems faced by judicial identification in trade secret cases. The judiciary should carefully choose judicial identification in trade secret cases, pay attention to the operability of entrusted matters and the reasonableness of appraisal materials. In the process of judicial identification, entrusting party should contact with the expertise institution closely, and review the conclusions carefully. By reasonable allocation the burden of proof in a lawsuit to clear who should pay the appraisal cost. To unify the standard and regulate the behavior of judicial identification in trade secret cases.Through cross-examination and evaluation mechanism of appraisal expert committee to make the adoption of judicial identification conclusions standard. Collaborating with other technology identified means to supplement trade secret judicial identification.At last, the existing problem of trade secret judicial identification should be solved in time. When we develop the other technology identify means, we improve the judicial identification of trade secrets at the same time. Let the trade secret judicial identification and other technology identify means to complement each other, so that to play a more important role.