Research On The System On The Legal Relief Of Trade Secrets

The research object of this dissertation is the system on legal relief of trade secrets. There is a legal proverb:relief priors to right. If a right can't get timely and effective relief when it is violated, it is hard to say that is a legal right. The protection of trade secrets is not the exception. Trade secrets have very high economic value and they are easy to be lost innately, at the same time the violating actions usually have some characteristics, which are easy happening, diversification and concealed, so trade secrets need to be protected by strong and effective legal relief system. It usually costs the holder of trade secrets a lot and hard for him/her to recover when a trade secret is violated, the only solution is to strengthen legal relief of trade secrets continuously, so the legal system on legal relief of trade secrets should be feasible and have a wide application scope.Rapid development of media technology and formation of internet facilitate the spread of information and increase the difficulty of trade secrets protection, which further make torts against trade secrets happen more easily and push legal relief of trade secrets into tougher situation. With the economic globalization and the dramatic development of high technology, the original intellectual property rights legal system has been challenged harshly and can't include or effectively regulate the developing trade secrets. The legal relief system of trade secrets shows the characteristics of internationalization, specialization and diversification gradually. The relief methods change from civil relief-centered to civil relief, criminal relief and administrative co-existed. The protection shows the tendency of keeping being strengthened. The relief term changes from post-tort relief centered to precaution and post-tort relief co-existed. The protection scope becomes wider. The legislation method of relief changes from Anti-unfair Competition Law, Tort Law and Contract Law co-existed to Trade Secrets Law-centered. The protection method shows comparative strong professionality. However, in modern international law, as legal relief systems of trade secret are based upon different legal grounds, there are great differences in the aspects of legislation method, protection scope and relief way, etc. The current laws overlap, at the same time, there are some blank areas in the protection scope. In order to deal with these changes, a majority of world countries have strengthened the protection of trade secrets, made or revised domestic legal relief system of trade secrets to let legal relief work better.Currently, our country's systems on legal relief of trade secrets are Anti-unfair Competition Law-centered, combining with General Principles of Civil Law, Civil Procedure Law, Contract Law, Labor Law, Criminal Law, many judicial interpretations and administrative regulations, which is a multi-method and multi-level protection mode. Under this legislation mode, there are some contradicts between different laws and regulations, some conflicts and competitions between different rules, which brings much inconvenience to the practice. Moreover, there are some legislation blankness in some critical area, such as, there are no corresponding pre-relief measures before trade secrets tort actions. Some international commitments have not been implemented in domestic law, such as, there is great gap between the protection of medicine and chemical material secret data and TRIPS. So, our country's current legal relief system of trade secrets has a lot of defects in contrast with real demand, which needs to be researched deeply. The emergency is to understand the defects of our country's current legal relief system of trade secrets correctly, analyze its source deeply, provide feasible perfection measures and suggestions, speed up the connection to international society and further perfect and improve our country's legal relief system of trade secrets.Taking USA, Germany, Japan and TRIPS'Related rules as a reference, the author uses research methods of interpreting legal theory by analyzing typical cases and comparative law, etc. to make deep comparison, analysis and reference to above-mentioned legal relief system of trade secrets. Absorbing the essence and discarding the dross, the author does systemic research to our country's legal relief system of trade secrets from the perspective of civil legal relief, criminal legal relief and administrative legal relief in combination with our country's current background on legislation, judicial and practice of trade secrets. It states and evaluates the virtues and defects of some related legal theory, connects with the practice, analyzes and solves some big and difficult problems in judicial practice, does independent thinking and provides some creative viewpoints by the reference to some related research results. Finally, the author provides some suggestions on how to improve and perfect legislation, judicial side and enforcement of trade secrets and hopes to give some theory supports to our country's establishment of advanced and perfect legal relief system of trade secrets.This dissertation is divided into seven chapters. The basic structure is as follows:Chapter one simply states the basic theory of the system on legal relief of trade secrets. Firstly it researches the basic scope of protection of trade secrets, which includes the definition, scope and nature of trade secrets, then compares and analyzes the constitutive requirements of trade secrets. Secondly, it explores the basic theory of legal relief system of trade secrets, discusses several kinds of important theories and their mutual relations. Thirdly, it researches legislation modes of current legal relief system of trade secrets. Finally, it states the developing tendency of legal relief system of trade secrets, which includes internationalization, specialization and diversification.Chapter two dissertates the recognization of torts against trade secrets. This chapter makes comparative study to different countries'systems on recognization of torts against trade secrets emphatically, which includes study on types of torts against trade secrets, constitutive requirements of torts, principles of liability, judgment about bona fide third party'encroachment to other people's trade secret and the exception. It provides suggestions on how to perfect recognization of tort against trade secrets in our country by making comparison and reference of related systems.Chapter three discusses civil relief system on torts against trade secrets. This chapter makes a comparative analysis to several main country's civil legal relief system of trade secrets and researches USA's injunctive relief system and compensation system, Germany and Japan's nonfeasance petition right and compensation petition right emphatically in combination with our country's legislation and judicial practice. In this chapter, the author makes special discussions to above-mentioned country's civil legal relief system according to their emphasis, then basing on that, the author reviews our country's civil legal relief system of trade secrets once more, refers above-mentioned country's legislation experience bravely, provides some related legislation suggestions to perfect our country's civil legal relief system of trade secrets.Chapter four discusses criminal legal relief system of trade secrets. Firstly, it introduces legislation development of criminal legal relief system of trade secrets. Secondly, it researches theory basis of crimal legal relief system of trade secrets from three perspectives, which are the necessity of criminal legal relief, the moderation of criminal legal relief and the speciality of criminal legal relief's value. Thirdly, it discusses and analyzes criminal legal relief of trade secrets in USA, Germany and Japan. Finally, it analyzes current situations and defects of our country's criminal legal relief of trade secrets.Chapter five discusses administrative relief system of trade secrets. Firstly, it makes theoretic analysis to admimitrative relief system of trade secrets, which mainly includes necessity, feasibility and rationality of trade secrets'administrative protection and the advantage of administrative protection is the emphasis. Secondly, it analyzes the construction and operation of our country's related system. It discusses abstract administrative actions and specific administrative actions of administrative bodies emphatically, which are the regulations enacted by administrative bodies and specific jurisdictions, law enforcement power and relief means. Thirdly, it analyzes rules on administrative procedure of TRIPS and administrative procedures and measures that contracting parties can take, then compares our country's corresponding rules with TRIPS'related rules. Finally, it analyzes puzzles of enforcement of administrative law in our country's practice, then discusses the practical development about administrative protection of trade secrets in our country and provides some suggestions on how to perfect it.Chapter six discusses procedural protection of legal relief system of trade secrets. Firstly, it researches trial in camera in trade secrets litigation procedure, which focuses on the protection of interests of holder of trade secrets right, then it explores the value orientation and necessity of trial in camera. Secondly, it explores preservation system in legal relief of trade secrets, which has complicacy and speciality. Preservation system includes property preservation, evidence preservation and advance execution, etc. It makes deep discussion to the introduction of injunctive relief. Secondly, it dissertates evidence rule in legal relief of trade secrets. It discusses indentification of standard of proof, distribution of burden of proof and our country's related judicial practice from the perspectives of parties and courts. Finally, it states secrecy system in the legal relief of trade secrets, which mostly prevents secrets going out in the procedure of legal relief.Chapter seven mainly discusses the legislation defects and perfecting suggestions of system on legal protection of trade secrets in our country. Firstly, it dissertates the current situation about legal protection of trade secrets in our country, which makes analysis and comparison from domestic aspect and international aspect. Secondly, from the perspective of judicial practice, it chooses several typical cases, makes an empirical study and generalizes main important questions and difficult questions in judicial practice. Thirdly, it discusses the main defects of legal protection of trade secrets from three aspects, which are legislation aspect, judicial aspect and enforcement aspect, and raises several question that need to be solved in current system. Finally, it analyzes the source of these defects and problems and provides some suggestions for the improvement of our country's trade secrets law.