Evidence Obtained by Entrapment Not Acceptable in Civil Proceedings

In this case, the claimants spent several hundred thousand Yuan to collect evidence of software piracy under disguise of their staff's assumed name. However, in the final instance decision dated 15th July 2002, Beijing Higher People's Court held that evidence obtained by such means was not acceptable.

The claimants were Beida Founder Group and Beijing Hongluo Computer Science and Technology Institute (hereinafter referred to as "Founder" and "Hongluo"), well-known suppliers of electronic printing and publishing software and solutions in China.The respondents were Beijing Gaoshu Tianli Technology Limited and Gaoshu Technology Limited (hereinafter referred to as "Tianli" and "Gaoshu").

The respondents had been the distributors of the claimants' imported laser typesetting machines years ago. These machines were supported by Founder Raster Image Processing (RIP) software and Founder Wenhe ("文合") software.The distributorship terminated later but both parties continued to sell the laser typesetting machines on their own.

In July 2001, a staff member of one of the claimants rented an office under an assumed name at the suburb of Beijing and bought a laser typesetting machine from the respondents. The respondents installed the machine and, at the request of the staff member, installed pirated Founder RIP software and Founder Wenhe software in the two computers provided by the respondents' staff. The respondents also provided laser discs recorded with such pirated software. At the request of Founder, a notary public notarized the whole purchasing and installation process, and preserved the two computers installed with pirated Founder RIP and Wenhe software as well as the discs recorded with such software as evidences of copyright infringement.

The court of first instance in Beijing held that in order to collect infringement evidence, the claimants had spent large amount of money and had to resort to an entrapment to collect evidences, which is not prohibited by the law. Accordingly, the court decided that the respondents should: a. immediately stop the infringement; b. compensate the amount of six hundred thousand Yuan (about US $78,000) to the respondent and the investigation cost for four hundred and seven thousand Yuan (about US $50,000); c. return the amount of three hundred ninety four thousand Yuan (about US $50,000), which was the price of the laser typesetting machine purchased by the claimants (or the staff).The respondents appealed the decision to Beijing Higher People's Court. Beijing Higher People's Court held that entrapment should not be the only way for the claimants to obtain infringement evidence in this case, and that such means had violated the principle of fairness and had been detrimental to normal market order, honesty, trust and social morality. The Court decided that there was indeed a copyright infringement and the value of software being pirated was one hundred thirty thousand Yuan (about US $16,000), that the other cost for collecting the evidence should be borne by the claimants and that the costs of ten thousand Yuan (about US $ 1,250) for notarization of the piracy should be borne by the respondents. Beijing Higher People's Court, in its final judgment, decided that the respondents should: a. stop infringement immediately and publish a public apology to the claimants; b. compensate one hundred thirty thousand Yuan (about US $ 16,000) to the claimant; c. bear the notarization cost.

The presiding judge, Judge Cheng Yongshun, explained why Beijing Higher People's Court did not accept the evidences collected by the claimants. He said that his reasoning was: all parties should be equal in a lawsuit, therefore, one should not collect evidence by resorting to means that would harm the legal rights of the other party; b. collecting evidences by entrapment would inevitably result in fraud and deceit, and would harm the other party's transaction opportunity in a normal situation, and would be seriously detrimental to the safety and order of business transaction.