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Comparative Legal Study On TRIPS Agreement And Trade Secret Civel Remedy System

Posted on:2011-09-09Degree:DoctorType:Dissertation
Country:ChinaCandidate:Q ShenFull Text:PDF
GTID:1116330332459182Subject:International law
Abstract/Summary:PDF Full Text Request
With the globalization of the world economy and the development of the knowledge economy, trade secret is an IP right which is different from the traditional IP rights, such as patent, trademark and copyright. It has the value of stratagem. It means positional or real economic value and competitive advantage to the competitor in the market. It is also important way to improve the country's international competitive ability and general national power. The developed countries set up the trade secret legal remedy system by acts and precedents. Especially after TRIPS agreement provided that undisclosed information is a kind of IP right, it set up the minimum standard to protect the trade secret by the WTO member's domestic law. The WTO parties also amended their domestic law and regulations, so the trade secret legal remedy system had been set up and developed. Our country did the right thing too. Under the principle of TRIPS agreement, China made anti uncompetitive law to protect the trade secret. And trade secret itself is special IPR proved through the litigation, so the judgments of the court showed the level of the legal protection of the country dynamically. When the judge hears the case about the dispute of the trade secret, he has to face with lots of legal problems including conformation of the trade secret right, determination of the infringement, burden of proof, application of injunctions and damages. In the judicial practice, we have to solve these problems through the theory and practice, so I think I shall do some research work on the trade secret civil remedy system.Chapter one is about the research of the trade secret civil remedy theory in the frame of TRIPS agreement. I compared the definition and the elements of the trade secret in the domestic law and TRIPS agreements; I looked around the development of the trade secret remedy theory including contract theory, tort theory, property theory and competition law theory and the balance of the interest in the TRIPS agreement negotiation. I paid more attention to the research of the mode of trade secret remedy. The fact is that the civil remedy is the main mode in many countries. Also in china civil remedy for trade secret takes more important role than the criminal and administrative remedy.Chapter two is about the research of conformation of the trade secret right. It is the fundamental to offer the remedy for trade secret. I discussed the basic problem in conformation of the trade secret right, including the subject of the trade secret, the object of the trade secret, and the carrier of the trade secret and the determination of the public domain. And I also discussed special problems such as the restrain of the trade secret by public policy, other legal rights and anti-trust law. I compared the right of trade secret with the patent right, emphasized on problems about conflict of the protection policy legitimacy and international free trade, the difference and connection between the protection ways of trade secret and patent. Then I analyzed characteristic feature of the trade secret and the development trend.Chapter three is about the determination of the infringement of trade secret in domestic laws and TRIPS agreement. First, I compared the kinds of the infringement act provided in many domestic law and WIPO and TRIPS agreement. I also analyzed the provision of Chinese law and regulation. Then I discussed the principle to conform the infringement including mistake liability, strict liability and mistake presumption liability and the understanding of article 45 of TRIPS agreement. I also researched the legal problems of breach of confidence in labor contract and the non-competition agreement. For the legal problems of breach of confidence I researched both the one during the labor contract and after the termination of the labor contract. For the legal problems of non-competition agreement, I paid more attention to the definition and kinds of the non-competition agreement. Based on the provision of other countries'domestic law, I conclude the main content of such agreement and the determination of the validity with reasonable standard.Chapter four is about the burden of proof in trade secret infringement litigation. First, I researched the burden of proof system in many countries including the main theory of civil law system and common law system and the theory used in China. With the affection of TRIPS agreement and dispute settlement procedure in WTO, I mainly discussed the system of burden of proof in United States and China, judicial identification and superior evidence principle. Then I research the special rules in the legal problems of the presumption, transformation and investigation of evidence. I have some suggestions to improve the system of burn of proof in the trade secret infringement litigation in china, special for these problems as how to prove the element of secrecy, the validity conformation of evidence in criminal case and civil case and the explanation right executed by judges.Chapter five is about the injunction system and the inevitable disclosure rules. According to related provisions of TRIPS agreement, it needs every party to set up the injunction system. United States had its own system of injunction. And German, Japan and China domestic law provided the measures like injunction. The temporary injunction system has much more advantage than other kind of injunction. The inevitable disclosure rules were developed in the injunction system of United States. I researched the fundamental theory, applicable condition, main restriction and affection. Chinese court has injunction system in IP remedy system. In patent, trademark and copyright case the plaintiff can apply for temporary injunction. It is necessary and possible to set up temporary injunction system in trade secret infringement litigation in China. It needs to apply the injunction strictly and limitedly. And the development of injunction system shall take two steps.Chapter six is about the damage system of TRIPS agreement and domestic laws. Damage and injunction system are both important way in trade secret infringement remedy system. I compared the provision of some countries'domestic law in common law system and civil law system, and want to find the difference and the connection between damage system and injunction system. TRIPS agreement also provided the damage system in IP right infringement. Then I concentrate on the discussion about the principles of damage including compensative damage and punitive damage. The punitive damage principle is affected by competition law theory. In our country we shall choose reasonable principle of damage in IP right remedy system and solve the problem of trade secret value estimation and the computing method of damages.
Keywords/Search Tags:TRIPS, trade secret, civil remedy, comparative research
PDF Full Text Request
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