The Research On The Technical Investigator

In recent years,the number of intellectual property cases has increased rapidly,and according to the relevant statistics,China has become the country with the largest number of intellectual property cases in the world,which partly reflects the importance attached by the public to the judicial protection of intellectual property.However,intellectual property is highly professional,and the controversy of disputes over intellectual property litigation is often focused on the identification of technical facts,resulting in difficulties in the trial of such cases.For judges,due to professional limitations,they can not solve all the technical facts through personal ability.It is inevitable to rely on additional assistance to identify the facts in the technical field.At present,the mechanism of technical identification in our country mainly includes judicial expertise,expert assistant,expert consultation and expert juror system,but each system has its applicable conditions and shortcomings.In order to make up for the defects,our country introduces the technical investigator system,but for various reasons,there are still many difficulties in the practice of this system.In order to clarify practical problems and put forward solutions,this paper will study them from four parts.The first part clarifies the concept of technical identification mechanism and analyzes the shortcomings and limitations of other technical identification mechanisms,which leads to the goal of technical investigator system and the legislative process.At the same time,this part combs the technical judge system and the technical investigator system in Germany,Japan and other countries,to make a corresponding crosscomparison with China’s technical investigator system.The second part mainly starts from the self-generated problem of the technical investigator system,points out the two major controversies of unclear role positioning of technical investigator and unclear legal effect of technical investigation opinions,then analyzes the theory of comparative theory,and compares it with the solution of similar system problems in foreign countries to derive the position of this paper.The third part focuses on the problems that have emerged in the current practice of technical investigator system: the excessive adoption rate of technical investigation opinions reflects the unreasonable hypothesis of the technical investigation opinions;the transfer of the substantive jurisdiction of judges;the inconsistency between the technical investigator and his opinions in the judicial documents leads to the difficulty in reaching accountability and the lack of a supervision mechanism;the problems that violate the judicial openness as a result of the non-disclosure of technical investigation opinions;the problems that the existing selection and appointment rules are difficult to meet the complicated trial needs;and the problems that the technical investigator and his opinions are not well connected with other technical identification mechanisms.Last part makes suggestions for improving the above issues.Recommendations include: applying the technical investigator system on a case-by-case basis and strengthening the synergy between the technical investigator system and other technical identification mechanisms.Formulate detailed standards and clarify the selective disclosure of technical investigation opinions.Optimize the selection and supervision mechanism of technical investigators.