Comparative Research On The Preventive Protection Of Trade Secret

Trade secret needs preventive protection because of its fragility, and the preventive protection in this text is for the only situation of the threatened infringement of trade secret. The threatened infringement is not a kind of infringement act, but in this situation, trade secret under a kind of inevitable dangerous of infringement. Therefore, the preventive protection is urgent and necessary for that. Moreover, comparing the post relief, the preventive protection is more focus on removing the dangerous and preventing the happened of infringement.The preventive protection of trade secret is necessary, that not only because of the value of the trade secret, but also rest with the attribute of intellectual property. The violative protection is just one of the content in intellectual property, and the confidentiality of trade secret determines the particular significance by the preventive protection. In addition, the multiple occurred in the threatened infringement of trade secret in reality is one of the important reasons.There are two types of preventive protection of trade secret; one is the protection by the natural of intellectual property which established on the attribute of intellectual property, another one is the protection by contract which based on the characteristics of threatened infringement. Basing on the compared analysis about the mode of preventive protection of trade secret in different countries, it can be reduced to two types of mode, the combinative using of protection by the natural of intellectual property and protection by contract, and single using of protection by contract. Under the combinative mode, according to the standard of the judge method of threatened infringement, the combinative mode also can be classified into two specific modes, one is based on the independent judgment and another one is relied on the contractive judgment.Our country admits the attribute of intellectual property of trade secret, but just protect by contract. Obviously, this is not confirmed to its property. Therefore, the mode that our country chooses for trade secret protection should be combination of protection by the natural of intellectual property and protection by contract. Using appointment of contract on prohibition of competition to become judgment of whether the threatened infringement exist not only can avoid the suspicion of post contract on prohibition of competition, but also unify the appointment of contract on prohibition of competition and the judgment of threatened infringement. For this reason, the property rights protection type that depending on contract determination correspond the mode of property rights preventive protection in our country. In the combinative mode, not only need to supplement and complete it on the present system and institution, but also the rationality of contract on prohibition of competition be endued a new meaning. Moreover this is easy to unify the rationality standard in judicial practice. Although our country does not have the lifelong tenure labor habit in Japan, it enlightens our country in staff management aspect significantly. And the staff benign flowing not only will not obstruct protection of trade secret, but also benefit to the formation of competitive environment.