Study On Legal Protection Institution Of Trade Secret

The trade secret is a social phenomena that has a long and evergreen history. It develops with the marketing economy. Because of the rise of the knowledge-based economy and the global development of the economy, the trade secrets has gradually become the focus of the market competition. Because of the promotion by the establishment of WTO, the trade secret protection becomes rapidly an important measure in legislation for some countries. TRIPs in WTO frame defines that the trade secrets is a kind of the intellectual property right. TRIPs, one of the three fundamental substantive principles, is the minimum protection standard for trade secrets. As a member of WTO, China must fully enforce the TRIPs. Trade secret will greatly enrich the contents of intellectual property. What's more, many other countries such as the United States, Japan, Germany have founded sound legal systems to protect trade secrets. In some countries, specialized laws and regulations on trade secrets protection has already been stipulated. The innermost purpose for trade secret legal protection is not only to satisfy the need which can maintain the legal interest of the right holder but also, in a more important sense, to take maintaining trade morality and competition order into consideration. In which legal category should the trade secret belong to and the protection of trade secret becomes a concerned question for the direct interest of the rights holder and an important standard to measure the investment environment for one country. The market economy of our country is a legal economy with order. The effective legal protection on the rights and interests of the manufacturers and business operators is the foundation and premise for the healthy development of our country's market economy. With the fastening step of the reforming process and construction of market economy, our country gradually strengthens the legal protection of trade secret. Basing on the foundation of both absorbing advanced experiences from other countries and combining the domestic situation in reality, our country has established elementary protection system of trade secret. However, all the facts that the relevant laws and regulations is decentralized to some extent; the protection of trade secret is too abstract; the operation is in lack of standard. arouse many problems for the protection system of trade secret in practice. Therefore, the analysis of theory research and concrete application to fasten the protection of trade secret becomes a new research subject. Taking the relevant regulation of international agreement and the research achievement that available in other countries at present as reference, the author, after combining the laws and regulation and the present situation together, makes a systematic analysis on the aspects as follows: the definition of trade secret, the requisites and the range of trade secrets; the legal attribution of trade secrets; the subject, object and contents of trade secrets right; the infringement of trade secrets right and its legal remedies as well. This analysis and discussion is aiming at the perfection of the legal protection system of the trade secret in our country in order to suit the need of the new era. Chapter one discusses the general theory about trade secret. On one hand, the author makes a rather detailed introduction and analysis about trade secret, on the other hand, the author makes an analysis and summary about the constituents of trade secrets and then draws a conclusion as follows: first, trade secret is embodies with the character of secrets, that is to say, trade secret is not known by public; second, trade secret is embodies with value, that is to say, trade secret will be able to bring economic interest to the rights holder; third, trade secret is embodies with the character of confidentiality, that is to say, the rights holder of trade secret should take reasonable measure for trade secret. Chapter two discusses the rights of trade secret and it's contents. The author, first of all, analyzes the concept of trade secret rights which is an intangible property rights from the comparison of trade secret protection theory with other countries. Secondly, the author makes a discussion about the links and differences between trade secret andpatent. What's more, the author also mentions how to choose the means of protection for the rights holder between trade secret and patent. In the end of this part, the author discusses the limitation of legitimate interest of other party and the social public interest on trade secret rights. The study of this part further defines accurately the trade secret from the minor point of view. Chapter three mainly concerns the infringement of trade secret and legal protection of trade secret. First of all, the author analyzes the constituents of the trade secret infringement by analyzing the stipulation of infringement both home and abroad. Secondly, the author discusses the ascertainment and legal responsibility of the third party in good faith in trade secret infringement. Thirdly, the author analyzes the burden of proof and the principle of liability fixation in application of the cases of trade secret infringement in litigation procedure. In the end, the author discusses the injunction remedies, the damages compensation and criminal remedies of in the remedies institution of trade secret infringement in other countries. Summary: With the summary of the legislation tendency and experience of trade secret from other countries, the author points out many inadequate aspects of the trade secret protection in the present laws and regulations of our country and makes concrete suggestion of the legal protection on the trade secret in our country accordingly.