중국 영업비밀 침해소송의 증명책임과 증명도 분석* : “‘罩式炉吊具’技术秘密侵权案二审判决(2022, 最高法知民终719号)”을 중심으로

In a trade secret infringement action, the plaintiff, who seeks to claim damages from the defendant, bears the burden of proof. However, in such cases, the majority of the evidence is within the defendant’s control. Consequently, for the plaintiff to obtain the necessary evidence is often challenging, which leads to an ineffective response to a trade secret infringement lawsuit. Moreover, as in other civil litigation, to persuade the judge subjectively that the plaintiff’s trade secret has been infringed, they must substantiate the elements of the claim with a high degree of likelihood (i.e., over 80% certainty). This situation places a significant burden of proof on the plaintiff. By contrast, China has adopted a distinct approach to the burden of proof and the evidentiary standard in trade secret infringement lawsuits compared to general civil actions, thereby facilitating relieving the plaintiff’s burden of proof. Notably, the 2019 amendment to the Anti-Unfair Competition Law explicitly codified the plaintiff’s burden of proof in trade secret infringement cases, and considerably lowered both the burden and standard of proof required. Accordingly, to consider the possibility of lowering the standard of proof in trade secret infringement lawsuits in Korea from “highly probable” (over 80% certainty) to “preponderance of the evidence” (i.e., over 50% certainty), in alignment with the approach taken in China, from a systemic perspective is essential. This study examines the relevant case law from China (the “Target Judgment”) concerning trade secret infringement lawsuits, analyzes the institutional framework surrounding the burden and standard of proof in Chinese trade secret litigation, and compares and contrasts the case law of Korea and China to identify both similarities and differences. This study ultimately aims to derive institutional implications that could alleviate the plaintiff’s burden of proof in trade secretlitigation.