Research On Distribution Of Burden Of Proof Of Constitutive Elements In Trade Secret Infringement Litigation

As the proverb says,“where the burden of proof lies,where the case is lost.” The distribution of burden of proof not only affects the litigation burden of litigants,but also affects the process of litigation.The distribution of the burden of proof not only affects the burden of litigants,but also affects the process and result of the case.The first chapter analyzes the changes after the implementation of the Anti-Unfair Competition Law,and highlights the revised status through comparison.It argues that it is rational that secrecy requirements applies the general rule of burden of proof.The changes in our country’s legislation are mainly reflected in the clarification of placing secrecy proof burden upside down and confidentiality as the first order.The change in judicial practice is that the secrecy requirement does not apply the rule of inverting the burden of proof,and the confidentiality requirement is recognized and applied in a small range.It starts from the background of the revision of the Anti-Unfair Competition Law in 2019,and analyzes the newly added Article 32 burden of proof provision.Discuss the problems caused by the incompleteness of the newly added Article 32: whether the secrecy,which is used to difficult to provide,is applicable to the inversion of the proof burden rule;and whether the confidentiality should be in the primary order.The second chapter argues that it is rational that confidentiality requirements should be the first.It also analyzes the rationality of secrecy requirement applies to the general burden of proof rule from the domestic and foreign perspectives.First,it clarified the related concepts of burden of proof,and clarified that the constituent elements of my country’s trade secrets are secrecy,confidentiality,and value.Integrating our country’s status quo,we comprehend Article 32 from the angle of academic.From the constituent elements’ proof burden distribution,analyzing the rationality of placing confidentiality elements in the first order of proof.The third chapter,from a foreign perspective,analyzes Japanese and the United States legislative and judicial status.In the United States,the burden of proof of the secrecy requirements is applied to transfer to counter party,and the claimant provides evidence to prove the establishment of the secrecy requirements.However,the order of proof of confidentiality is not applied in the judicial system.Japan’s secrecy requirements are provided by claimants,and in judicial practice,the emphasis is placed on the adoption of confidentiality measures,and the confidentiality requirements are placed in the first order of proof.Based on Japan and the United States,it is proposed that our country should learn from them and improve the distribution of burden of proof for the constituent elements of trade secrets in our country.The fourth chapter puts forward the advise of the distribution of the proof burden of the trade secrets’ constituent elements in the civil infringement in our country.Clarifying the secrecy requirements is applied to the general burden of proof.However,for the difficulty in producing evidence for the secrecy requirements of the claimant,the difficulty of proof can be reduced by lowering the proof standard or not being easy to obtain.Clarifying the confidentiality requirement is the first order of proof,which in fact eases the difficulty of producing the secrecy requirement from another angle.Claimants implement step-wise proof.From the perspective of interest measurement,we rationally allocate the burden of proof that litigants bear in trade secret infringement litigation for the constituent elements of trade secrets.