Distribution Of The Burden Of Proof In The Trade Secret Infringement Litigation

In the trade secret infringeent litigation, the allocation of the both parties’ burden of proof should be the core issue during a trial, which has affects both on the trial process and the interests of both sides. Meanwhile,the allocation of the both parties’ burden of proof is a major problem in the trial, but is easily regulated in the relevant provisions of laws. Although the new judicial interpretation on the Civil Procedure Law makes provisions on evidence in article 90 th to 124 th, where the burden of proof and its allocation are stated more accurately, but there are no specific detailed provisions for trade secret infringement. Thus there are no agreed understandings or standards and still many controversial issues on these problems, affecting the allocation of the burden of proof of both parties as well as the final result. Therefore, to clarify the allocation of the burden of proof theoretically and then to guide the judicial practices is extremely urgent.This paper is divided into four parts on this problem discussed, as described below:The first part is a theoretical overview on the burden of proof. According to the current judicial interpretation of the Civil Procedure Law, the burden of proof in subject should be in accordance with the principle that”the one who advocates undertakes the burden of proof” with no specia provisionsl and the burden of proof in object belongs to the plaintiff in general based on the theroy about elements of legal norms. As for the standard of proof, it has been clear to be a high degree of probability. At present, China has not enacted a unified trade secrets protection law, thus the rules of proof to be applied should refer to the rules in the Civil Procedure Law and other substantive laws based on the Anti-Unfair Competition Law.The second part talks about the controversy in trade secret infringement, mainly about whether the rules about rebuttal burden of proof should be applied. On this issue there are two different views among papers. One supports the point that the burden ofproof on the plaintiff’s should be rebuttal and think that the practice of "Contact plus Similarity" rule is reflected correspondingly, while another opposite view is that whether the rebuttal burden of proof can be used must be clearly defined by law and trade secret infringement cannot apply. I hold the second view and think that the key is to lighten the burden of proof on the plaintiff, upholding the principle of high probability standard.The third part talks about is the specific burden of proof of both parties in infringement of trade secrets. The plaintiff needs to prove the existence of trade secrets,the facts of violations and the results of the damage caused. The defendant in the direct infringement should defend by legitimate source of the information, and the burden of proof the bona fides third party is still in a state of legal gaps but also will be improved in the future.The last part talks about some recommendations for further improvement of the distribution of both parties’ burden of proof in the trade secret infringement. In terms of substantive law, it is mainly to fill gaps about the bona fide third party’s burden of proof and in terms of procedural law, it mainly introduces the inevitable disclosure doctrine and disclosure of evidence.