民事訴訟上事證開示與秘密保護之比較研究――以專利侵權事件為例

Comparative Study on Disclosure of Evidence and Protection of Secrets in Civil Litigation: Patent Infringement Cases as Example

相較於固有的民事財產權紛爭，專利權的侵害事件往往呈現事證偏在加害人一方的情形，亦即，權利人對於其專利權是否被侵害、如何被侵害、有無損害及損害的範圍為何等權利根據事實，大多處於欠缺必要或詳細資訊的窘境，因此，必須檢討現行民訴法及特別法上就「負舉證責任之當事人如何在起訴前或訴訟中取得他造所持有之文書、勘驗物等證據資料」的規範，是否已足以克服此問題。然而，藉由程序法上之「事案解明機制」以充實無體財產權之保障一事，固然係為貫徹實體權利、促進產業發展與健全競爭秩序等事所不可或缺者，惟如何平衡兼顧他造因事證之開示所可能遭受限制或減損之資訊自主決定權及其產業上利益、如何防免濫用此制度所可能導致的不公平競爭狀態，亦屬不容忽略的課題，故應反省現行民訴法及特別法上是否已提供充分的「秘密保護機制」。本文乃比較德國民事訴訟法、專利法及其相關之歐洲法與我國民事訴訟法、智慧財產案件審理法就此議題的規範狀態，嘗試檢討我國法上之事案解明與秘密保護規範之完備程度及可能之改善空間。

In contrast to traditional civil litigations, legal cases concerning infringements of patent rights show oftentimes difficulties for the claimers either to know the infringers and how their rights being impaired or to figure out whether and to what extent damages occurred. There is namely a typical situation of lack of evidence. In order to remedy this inferior position, several mechanisms under civil procedural law or special laws such as patent law are available for the possible holder of rights, while their efficiency is to be reviewed. Meanwhile, it is not to be overlooked that broadly allowing the claimers to have access to documents in possession of their opponents, even before a lawsuit being filed, means inevitably a reduction of interests of the defenders on not revealing those documents which usually contend trade secrets. Since both the effective protection of intellectual properties and the maintenance of competitive order are keys to this issue, the law should provide a protective method preventing abusive uses of the right of inspection. Taking all this into account, this article starts with reports on recent developments of German law and European legislature. Following this comparative study it argues that the relevant provisions in Taiwanese Civil Procedure Code as well as Intellectual Property Case Adjudication Act are to a large extent adequate to balance the mentioned conflicting interests, while some miner ameliorations would be needed.