论商业秘密案件中临时禁止令申请人的举证责任

On the burden of Proof that the Applicant of Temporary Restraining Orders shall Bear in the Trade Secret Cases

加入Trips协议以来,我国在知识产权法中增加了"临时禁令"的规定。但在审理商业秘密案件中,对是否应签发临时禁止令、何时签发临时禁止令、签发临时禁止令时申请人需承担哪些举证责任,法律并无具体规定,司法审判中也无统一、具体的标准。本文拟从美国判例法出发,重点研究临时禁止令的签发申请人需承担的举证责任,为我国在商业秘密案件审理过程中对于临时禁止令救济措施的运用提供有益借鉴,同时为我国反不正当竞争法的修订提供参考。

Since China joined TRIPs, we have added the ＂preliminary injunction＂ provisions in intellectual property law. But in adjudicating trade secrets cases, the law doesn＇t have specific provisions on whether and when the court shall issue a temporary restraining order, as well as the burden of proof that the applicant of temporary restraining orders shall bear. There isn＇t any uniform and concrete standard of these aspects either. Starting from the American case law, this essay focuses on the issue of the burden of proof that the applicant of temporary restraining orders shall bear, so as to provide a useful reference for the application of temporary restraining orders in the adjudication of trade secret cases, as well as the revision of Chinese anti-competition law.