Research On Distribution Of Burden Of Proof For Trade Secrets Infringement Lawsuits

The burden of proof is known as the "spine of civil litigation".In litigation,it has a huge influence on litigants and litigation processes,and its influence has surpassed the proof of responsibility system itself.A legal proverb goes says:"The place to prove responsibility is the place where the lawsuit is lost."In the trade secret infringement lawsuit,the burden of proof means that It will bear the legally unfavorable consequence of the fact that the facts of the proof are unclear,and the distribution of the burden of proof determines who will bear the burden of proof and the unfavorable consequences of not being able to prove,and it plays an important role in protecting the rights and interests of the plaintiff and the defendant.When one party'burden of proof is too heavy,it will bring about substantial unfairness and the party that bears the burden of proof faces problems such as difficulty in proof and low success rate,which reduces the judicial protection effect of trade secretsTrade secret cases have special features compared with ordinary civil cases.In the field of intellectual property rights,the protection of trade secrets mainly comes from the confidentiality measures taken by the right holders,while the trade secrets allow multiple rights holders at the same time,and tort has a strong concealment in most cases,and the evidence of infringement is controlled by the defendant,which causes the problem of the right holder of the trade secret infringement case to prove hard.In addition to the objective reasons in practice,the provisions of the law on the distribution of burden of proof also caused the plaintiff to prove hard.There is no special provision on the distribution of the burden of proof of trade secret infringement cases,and the general provisions will increase the burden of proof of the plaintiff when they are used in trade secret infringement cases.At the present stage,the litigation of trade secret infringement in our country have the characteristics of large number of cases,low litigation rate and low rate of success.When the trade secret of the right holder of trade secret is violated,the dispute will not be settled and rights will not be protect through litigation in most cases.The main reason caused to prove hard is that the plaintiff's burden of proof is too heavy.Many laws in China have made relevant provisions on the protection of trade secrets,but the lack of uniform and systematic provisions has caused the problem of inconsistent standards for the distribution of burden of prove in court cases of trade secret infringement cases at all levels in judicial practice.The principle of the distribution of proof responsibility in trade secret infringement litigation is still distributed according to the general principles of civil litigation.Before studying the trade secret infringement litigation,it is necessary to summarize the concept and principles of the distribution of civil litigation proof responsibility.Because of the particularity of trade secret infringement cases,it is necessary to make the special provisions on the distribution of the burden of proof in trade secret infringement cases.on the basis of the distribution of the burden of proof in civil litigation,combined with the characteristics of trade secret infringement cases,to discuss the concept and the principles of the distribution of proof of responsibility in trade secret infringement litigation,and to discuss the particularity and necessity of the distribution of responsibility for the proof in trade secrets are theoret:ically explored.In the lawsuit of trade secret infringement,there is a problem of disconnection between legislation and judicial practice.In legislation,the distribution of burden of proof is mainly in accordance with the provisions of Article 2 of the Supreme People's Court on Evidence in Civil Proceedings and Article 14 of the Interpretation of the Application of Legal Issues in Civil Cases of Unfair Competition.Because of the particularity of trade secret cases,these provisions bring too much burden of proof to the plaintiff in practice,which leads to the plaintiffs difficulty in proof.In the judicial practice,the application effect of the provisions of the law on the distribution of burden of proof is not ideal.The courts at all levels have substantial summarized the practice and applied a large number of rules of "contact plus substantive similarity" and legal source defense rules in practice.At first,this principle was applied to the administrative regulations issued by the State Administration for Industry and Commerce.And then the courts at all levels began to apply the principle in trade secret infringement litigation,which was due to its strong practicability in judicial practice,and the use of legal techniques reduced the burden of proof for the plaintiff.However,the rules of "contact plus substantive similarity" and the rules of defense from legitimate sources are not provisions of legal or judicial interpretation.In the application,there is a problem of unfounded law.Raising them to judicial interpretation is the quickest way to solve the problem.Because the judicial interpretation is introduced more quickly and the regulations are more detailed.In the trade secret infringement lawsuit,when the distribution of the burden of proof in a case needs to be balanced,the judge can use the discretionary power to determine the distribution of burden of proof.Article 7 of the Supreme People's Court's "Several Provisions on the Evidence of Civil Proceedings" gives the judge discretion,but this provision is in principle and lacks detailed operating norms,which affects the application of this provision in judicial practice,so it should be refined in the relevant judicial interpretation of trade secret infringement litigation,increase the operability of the provisions,in order to give full play to the due role of the provisions.At the same time,in the lawsuit,the protection of the trade secrets of the right holders should be strengthened,because the protection of trade secrets mainly relies on the self-protection of the rights holders.In the lawsuits,if the disclosure will bring irreparable losses to the rights holders.