| My country’s "Anti-Unfair Competition Law" was amended for the third time on April 23,2019.This amendment specifically addresses the relevant provisions of the protection of trade secrets.The most notable of these is the provision of Article 32 concerning the rules of proof in trade secret infringement litigation,which seeks to solve the difficult problem of proof in trade secret cases in judicial practice.However,whether the new rules of proof can achieve the expected goals and what new theoretical and practical issues have arisen are worthy of further discussion.In theory,the new rules of proof do not clarify the burden of proof constituted by trade secrets,which conflicts with the traditional theory of "who advocates and who produces proof" of the distribution of burden of proof;there are many questions about whether the burden of proof is "transferred" or "inverted" Controversy;and because of the special nature of the trial of trade secret cases,the impact of the new rules of proof on the thinking of the trial of trade secret cases also needs to be investigated urgently;from a practical point of view,the wording of "preliminary evidence" and "reasonable proof" in the law has A certain degree of ambiguity,specifically how to grasp it in judicial practice;analyze whether the burden of proof for “not known to the public” in the law is still borne by the trade secret right holder before the amendment;determination of corresponding confidentiality measures,etc.,a series of issues Urgent research is needed.Combining with Article 32 of my country’s newly revised "Anti-Unfair Competition Law" and related documents and cases,and drawing on the rules of evidence for trade secret infringement litigation outside the territory,we propose a reasonable interpretation and judicial interpretation of Article 32 of my country’s "Anti-Unfair Competition Law"Apply recommendations.Firstly,through judicial interpretation,redefine the vague concepts of "preliminary evidence" and "reasonable proof" in Article 32,and secondly resolve the theoretical question of whether the rules of proof established in Article 32 are"transferred" or "inverted",and establish the "transfer of the burden of proof" "concept.Finally,the standard of "preliminary evidence" is unified,the burden of proof for the plaintiff in the case is strictly assigned,and the rationality of confidentiality measures and the distribution of evidence for confidentiality measures are clarified. |
