The court of first instance held that the method of "trap evidence collection" adopted by Founder Company of Peking University was not prohibited by law, and should be recognized, and Gaoshu Tian Li Company and Gaoshu Company should immediately stop the infringement. Gaoshu Tian Li Company and Gaoshu Company refused to accept the appeal. The court of second instance held that this way of obtaining evidence from Founder Company of Peking University was not the only way of obtaining evidence for infringement, which violated the principle of fairness. Once widely used, it will destroy the normal market order, so it will not be recognized. Founder Company of Peking University and Honglou Research Institute refused to accept the application, and after the application for retrial was rejected, they applied to the Supreme People's Court for retrial. The Supreme People's Court retrial according to the specific circumstances of this case, in the case that the legality of this way of obtaining evidence is not clearly stipulated in the law and judicial interpretation, according to the method of interest measurement and value orientation, this paper analyzes the legitimacy of this way of obtaining evidence, and further affirms the legitimacy of the way of obtaining evidence of Peking University Founder Company in this case.
case analysis
The case was full of twists and turns and lasted for several years. The focus of the dispute is whether the "trap evidence collection" method adopted by Founder Company of Peking University is legal.
Evidence is the basis of finding out the facts of a case, so the evidence itself must be true and reliable. The legality of evidence is also called the admissibility of evidence. The legality of evidence means that evidence can only be collected, fixed, preserved, examined and identified by judges, prosecutors, investigators and parties according to legal procedures, that is, the subject of evidence should be legal, the procedures of each evidence source should be legal, the evidence should have legal forms, and the evidence should be verified by legal procedures. The legitimacy of evidence is an important guarantee for the objectivity and relevance of evidence, and it is also an important condition for evidence to have legal effect. The examination and determination of the legality of evidence mainly refers to the examination of the form and collection of evidence, and its application must comply with the provisions of the law. Only evidence collected in a legal form or in a legal way or means can have evidential ability and can be used as the basis for determining the facts of the case, otherwise it will lose its qualification as evidence and cannot be adopted as evidence.
In civil litigation, the legitimacy of evidence is manifested as follows: as the basis for deciding a case, evidence must have legal sources and forms, be collected by legal subjects through legal channels and methods, and be verified, verified and judged according to law. According to "Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings", evidence must be verified before it can be used as the basis for ascertaining facts; The judge shall comprehensively and objectively examine the evidence in accordance with legal procedures; Evidence obtained by infringing upon the legitimate rights and interests of others or violating the prohibitive provisions of the law cannot be used as the basis for determining the facts of the case, that is, illegal evidence has no probative force. In administrative litigation, the provisions on the legality of evidence are the same as those in civil litigation.
The court of first instance held that the "trap evidence collection" method adopted by Founder Company of Peking University was not prohibited by law and should be recognized. This is not right. Because in civil litigation, although the law has made many explicit provisions on illegal acts, due to the extensiveness of social relations and the complexity of interest relations, the law does not adopt an exhaustive list of illegal acts unless otherwise expressly provided. In this case, the court of first instance held that the way of "trap evidence collection" was legal and obviously inappropriate without being prohibited by law.
The court of second instance held that the "trap evidence collection" method adopted by Founder Company of Peking University violated the principle of fairness and was not recognized. This is also wrong. Trap evidence collection is widely used in criminal investigation, especially in the case of buying and selling prohibited items. The so-called "trap" means that a certain environment is preset in advance, and the actor implements a certain behavior according to the preset environment. Although the act of setting traps objectively violates the individual rights of the actor, it is recognized by law for the protection of the overall interests of society. But how to determine the legal effect of "trap evidence collection" in intellectual property litigation, whether it violates the principles of good faith and fairness, and whether it harms the public interest?
First, if viewed in isolation, the method of "trap forensics" is absolutely undesirable, because it has the purpose of infringement and framing. Without this purpose, it cannot be regarded as "trap forensics". However, the judgment of intellectual property infringement cases should proceed from the interests of the whole society and make counterfeiters pay the price. It is true that in intellectual property infringement disputes, "trap evidence collection" is not necessarily the only way for the right holder to obtain evidence, but it is often the most effective way to obtain evidence. "Trap evidence collection" is a response taken by the obligee when the infringer does not stress honesty first and is unfair to the infringer. Therefore, the "trap evidence collection" method adopted by the obligee in intellectual property infringement disputes conforms to the principle of good faith and is conducive to establishing a just and credible social order ruled by law.
Second, in intellectual property infringement disputes, the method of "trap evidence collection" is mainly aimed at intellectual property infringers. The "trap" set only for the infringer will not affect the normal market transactions, unless the market transactions are all infringing products. The infringer is the chief culprit in disrupting the normal market order. It is obviously incorrect to regard the insecurity caused by the transaction of infringing products as the insecurity caused by the transaction of the whole market. Therefore, the "trap evidence collection" method adopted by the obligee in intellectual property infringement disputes will not harm the interests of the public and the normal market order, and will not bring serious harm to the security and order of transactions, but will be beneficial to the healthy development of the market.
As far as this case is concerned, Founder Company of Peking University not only obtained the evidence that Gaoshu Tian Li Company installed pirated Founder software on site, but also obtained the evidence and evidence clues that Gaoshu Tian Li Company sold pirated software to other customers and carried out similar infringement. Its purpose is improper, and its behavior has not harmed the public interest and the legitimate rights and interests of others. In addition, the way of obtaining evidence adopted by Founder Company of Peking University did not infringe upon the legitimate rights and interests of Gaoshu Tian Li Company and Gaoshu Company. Therefore, the Supreme People's Court retrial supported the main reasons for Peking University Founder Company and Honglou Research Institute to apply for retrial, revoked the judgment of the court of second instance, and ruled that Gaoshu Tian Li Company and Gaoshu Company immediately stopped the infringement, publicly apologized to Peking University Founder Company and Honglou Research Institute in the designated media, and compensated them for their economic losses.
In this case, Founder Company of Peking University applied for notaries to participate in the "trap evidence collection" process, and the notaries did not identify themselves to the infringer during the notarization process. Is this cheating? The answer is also no, if the notary shows his identity in the notarization process, the infringer will not be able to sell the infringing goods on the spot, and the obligee will not be able to obtain the evidence of his infringement. The procedures and requirements of notarization and evidence preservation are not clearly defined in the Provisional Regulations on Notarization and other laws, regulations and even rules related to notarization, nor are they clearly defined in the past civil procedure law and judicial interpretation. This kind of "trap evidence collection" accompanied by notarization evidence collection exists in a large number of intellectual property infringement disputes, and the dispute over this kind of evidence collection method has always existed. However, considering the difficulty in obtaining evidence in intellectual property cases such as copyright, and the fact that the protection of intellectual property rights in China is not sufficient at present, the Supreme People's Court's Judicial Interpretation of Copyright Law stipulates that the objects and invoices obtained by the parties themselves or by entrusting others to purchase infringing copies can be used as evidence. The evidence obtained by a notary from the other party in the manner specified in the preceding paragraph and the notarial certificate issued in the process of obtaining the evidence shall be regarded as evidence, unless there is evidence to the contrary.
Concluding comments
The demonstration significance of this case is that the civil law does not implement legalism in principle, and the principle of "permission without prohibition" cannot be simply applied to acts that are not expressly stipulated by law, but whether they are legal or not should be determined according to the methods of interest measurement and value orientation. This judgment method has certain universal significance. The judgment of this case is conducive to solving the problem of obtaining evidence in such intellectual property infringement cases. If the "trap evidence collection" method can be widely used in intellectual property infringement cases, it will deter and contain the infringement and increase the cost of infringement, thus greatly reducing the infringement, better protecting the legitimate interests of the obligee and establishing a good market order.