| With the continuous development of the market economy,commercial competition is becoming increasingly fierce,and the trade secret infringement cases also emerge endlessly.According to the statistical analysis of judicial documents of trade secret infringement litigation in the last five years,it is a common phenomenon that the plaintiff is difficult to win the lawsuit in our country.The reasons are that the trade secret has special attributes such as invisibility,confidentiality,valuableness and that infringement is concealed.However,until 2019,the regulation of "burden of proof borne by claimant" has been applied in this kind of litigation in our country,which means that the plaintiff had to prove all the things in the case,leading to a lot of trade secret obligees’ inability to get effective protection.On April 23,2019,Article 32 of the newly issued Anti-Unfair Competition Law redistributes plaintiff and defendant’s burden of proof respectively in the trade secret infringement litigation,and proposes a new rule to shift the burden of proof for the plaintiff,and the presumption of "Contact and Similarity Principle" is established in the form of law.The burden of proof of the trade secret obligee is greatly lightened by this action.However,the new law’s specific provisions on the burden of proof in this type of litigation are still ambiguous,and there is no improvement of the corresponding procedural rules of evidence in new law,and the standard of proof for the trade secret infringement litigation is not clear enough.All the deficiencies above will continue to affect the effective protection of the trade secret in our country.Therefore,on the basis of the newly issued Anti-Unfair Competition Law,we should continue to improve the rules of evidence in trade secret infringement litigation from three aspects,which are specific content of the burden of proof,procedural rules and standards of proof.To be specific,first of all,in order to prevent the possible applicational crisis of the new law,it is necessary to clarify what evidence the plaintiff and the defendant should adduce in the trade secret infringement litigation.Secondly,we can also establish our own supplementary procedural rules,such as the evidence collecting system and the trade secret’s confidentiality maintaining system,so as to alleviate the difficulties of evidence collection,evidence preservation and evidences’ confidentiality maintenance that the plaintiff may face in the trade secret infringement litigation.Last but not least,the proof standard should be defined as "preponderance of probability" in our trade secret infringement litigation,and the criterion of "Contact and Similarity Principle" should be perfected to prevent possible divergence of interpretation. |
