Evidence Review And Ascertainment In Intellectual Property Right Infringement Disputes

The establishment of special court of intellectual property right is to strengthen the judicial protection for the intellectual property right as well as reflect its characteristics in civil proceedings.Normally,reviewing and ascertaining evidence is a procedure that the judge makes judgment about whether the evidence is objective,true and legal;whether the evidence has relationship with the facts and whether the evidence can actually prove the facts.Each type of evidence has established its own way of review and ascertainment.Infringement disputes of intellectual property right,of course,needs follow the common way of evidence review and ascertainment.But considering the specificity of the documentary evidence,electronic data and expert opinion on evidence collection and operation in intellectual property right infringement disputes,reviewing and ascertaining these evidences should notice their specificity.The thesis will illustrate the evidence review and ascertainment by five articles.Article one is mainly about the common theory of evidence review and ascertainment.Firstly,it introduces the concept of evidence,from the broad sense and narrow sense.The former can be called evidential material and the latter is the real evidence in civil proceedings.For evidential material,it must be reviewed and ascertained by the judge and then can be evidence.According to the part of speech,evidence review and ascertainment is verb and has material effect on the civil proceedings.But now there is no accurate definition of evidence review and ascertainment,and different laws simply adopt different expression to describe this judicial activity.Therefore,this article concludes the evidence review and ascertainment from the law items and then explains the evidence review and ascertainment in accordance with the common comprehension of most scholars and puts forward that the evidence review and ascertainment is a kind of judicial activity with specific effect.Secondly,the content of evidence review and ascertainment typically includes the evidence adoption and evidence admission.Evidence adoption is to exclude the evidential materials which are obviously illegal,no correlation with the facts or fake;evidence admission is to make judgment about the probative force of evidential materials.After theoretical analysis,this article cites the laws and judicial explanation of evidence review and ascertainment and makes comparison the evidence review and ascertainment with the objection for adoption for beyond the time limit of evidence production.Finally,from the common to special,this article generally and concisely describes the specificity of reviewing and ascertaining documentary evidence,electronic data and expert opinion in intellectual property right infringement disputesArticle two is about the documentary evidence review and ascertainment in intellectual property right infringement disputes.For the start with,this article divides the documentary evidence into different types under three standards: the object of proof,the subject and the way of acquisition and the source region.Next,this article illustrates the document evidence defects in accordance with the subject and the way of acquisition.Under this pattern,the documentary evidence is divided into the documentary evidence which is made by parties themselves,official documentary evidence,documentary evidence which is collected by the court and notarized documentary evidence.In terms of the correlation of documentary evidence,the object of proof is a significant factor that should be taken into consideration.As for the notarized documentary evidence,given that our country regulates that evidence which acquires from the foreign regions should be notarized by foreign notarization institutions and authenticated by embassies and consulates,reviewing and ascertaining foreign notarized documentary evidence is different with the domestic notarized documentary evidence.the defects of foreign documentary evidence mainly focus on the notarization and authentication.After describing all kinds of defects of documentary evidence in detail,this article illustrates the way of reviewing and ascertaining documentary evidence.Because the notarized documentary evidence has a wide use in intellectual property right infringement disputes and the defects of such documentary evidence has a more concentrated reflection in civil proceedings,the defects of notarized documentary evidence and the way of reviewing and ascertaining are the key points of this article.Even though the foreign documentary evidence also involves in the notarization,the problem of notarization of foreign documentary evidence concentrates on the effect of notarization and to what extent that foreign notarized documentary evidence can be treated as domestic notarized documentary evidence.Article three is about the electronic data review and ascertainment in intellectual property right infringement disputes.In fact,the way of proving of electronic data is similar with the documentary evidence.However,because of the dual character of electronic data,electronic data is the last statutory evidence type and receives more suspicion than other statutory evidences.In a long term,the judges have prejudice towards electronic data and the review and ascertainment of electronic data has more randomness and partiality.In intellectual property right infringement disputes,the special value of electronic data is that many objects of intellectual property rights themselves are electronic data.If the prejudice,randomness and partiality cannot be removed,many facts in intellectual property right infringement disputes will not be ascertained and verified.Therefore,this article firstly descibes the electronic data in intellectual property right infrigement disputes.Then,this article concludes the three problems in electronic review and ascertainment.Finally,considering the special existing form of electronic data,this article establishes the classification based on the technique of form and legality of form,which is respectively related to the authenticity and correlation.Depending on the classification pattern,this article suggests the common as well as corroboration rules of electronic data review and ascertainment.Article four is about the expert opinion review and ascertainment in intellectual property right infringement disputes.The objects of intellectual property right,like copyright,patent,trademark or commercial secret and unfair competition,is relatively professional and technical.The judges need help to overcome such technical obstacles.By now,there are expert opinion,expert advisor,expert jurors,technique advisor and technical researcher to help the judge to ascertain facts.But it is the expert opinion that can be an independent statutory evidence type.Moreover,some technical problem can be resolved only by the precise instrument which in turn enhances the significance of expert opinion in the judge's mind.In a long term,the expert opinion was called as expert conclusion which in some degree means the opinion professional institutions offer can be used as evidence but without the review and ascertainment.The expert conclusion thus has predetermined probative force.In 2012,the Civil Proceedings Law revises the name of expert conclusion to expert opinion.However,the judicial practice does not follow the statutory change.In intellectual property right infringement disputes,duet to necessity of expert opinion,the expert opinion,in fact,is still a conclusion.This phenomenon has two reasons: one is that the judges have no comprehensive and systematic skills to review and ascertain expert opinion;another is that other ways are not fully used to resolve technical facts.Therefore,this article begins with the practical use in all kinds of intellectual property right infringement disputes.Next,this article puts forward the situation that the opinion becomes the factual conclusion.Then,based on the reason this article suggests the content and way of reviewing and ascertaining expert opinion.Finally,this article illustrates some difficulties of special way of reviewing and ascertaining expert opinion.Article five is the last article of this thesis and offers some proposals to refine the review and ascertain of documentary evidence,electronic data and expert opinion.Article two to four have put forward some proposals that are specific and microscopic.Macroscopic and emphatic proposals are necessary.Firstly,the improvement of documentary evidence should pay more attention to the notarized documentary evidence,including systematically concluding the defects,objectively treating the notarized documentary evidence and positively communicating with the notarization institutions.Secondly,the key of electronic data review and ascertainment should depend on the establishment of non-discrimination principle and scientific rule system.Finally,the expert opinion may concentrate on the way that the expert opinion cooperates with other patterns of ascertaining technical facts.It is quite hard to produce evidence in intellectual property right infringement disputes and the objects of intellectual property right are professional and technical,which results in the notarized documentary evidence has a wide use but also has more defects;the electronic data is inevitable but also is unbelievable and the expert opinion is a kind of conclusion in fact.Basing on these characteristics,this article respectively concludes the use,defects and judicial practice of these three evidences in intellectual property right infringement disputes.Then,this thesis illustrates the content and way of reviewing and ascertaining these three evidences.By this way,this thesis hopes to offer some help for evidence review and ascertainment in intellectual property right infringement disputes.