The Research On The Legal Problems Of Trap Evidence In Intellectual Property Litigation

In modern society,the number of intellectual property lawsuits is increasing year by year with the advancement of scientific and technological progress.The object of intellectual property has the characteristics of incorporeality,reproducibility,easy to delete and etc,so that obtaining the evidence in intellectual property litigation case has difficulties of evidence's invisibility,concealment and timeliness.Because of the lack of legal technique skills and plenty of difficulties in obtaining evidence,the litigant often take the approach of trap forensics in criminal procedural to search absolute proof.The problem of trap forensics in intellectual property litigation arises from the case“Computer Software Copyright Infringement” between Beida Founder and Beijing Gaoshu,and the judge of this case first put forward "trap forensics" in his judgment.Since then,the concept of trap evidence collection in intellectual property litigation,the necessity,legitimacy and normative approach to take this evidence collection behavior and other issues have followed one after another.The majority of judges and lawyers in China argue that the trap forensics of intellectual property litigation should be divided into purchase forensics and induced forensics.Through the analysis of classic cases,it is not difficult to find that judges and lawyers generally recognize the purchase forensics in practice.The application of trap forensic in intellectual property litigation is not only legitimate,but also can improve the efficiency of evidence collection.However,there are still some contradictions between trap forensics and the principles of exclusion of illegal evidence,the principles of fairness and integrity,and the principles of interest measurement.In judicial practice,the evidence ability of purchasing evidence is frequently queried.Therefore,it is urgent to regulate the trap forensics in intellectual property litigation.Firstly,the name of trap forensics should be corrected into strategic forensics which will be neutral in legislation,so as to avoid the illegal meaning of trap.The concept of trap forensics and the definition standard between purchasing forensics and induced forensics should be clarified.Secondly,from the point of view of trap forensics,we should improve the provisions related to substantive issues in exclusionary rules of civil illegal evidence and confirm the ability of purchasing evidence.For the slight illegality of purchasing evidence,which leads to the defect of the probative force of the evidence obtained,it is necessary to perfect the rules of civil reinforcement evidence,and improving the probative force of purchasing evidence byreinforcement evidences' supplementary.Finally,in the judicial aspect,we should standardize the way in which judges use legal terms in adjudicative documents,and scientifically regulate the judges' discretion.