The Legal Protection Problems Of Trade Secret In China And The Relevant Perfecting Suggestions

With the improvement of technology and the development of economy, the competition is becoming fierce. Today, an enterprise lies on superb techniques and scientific management much more than great capital and excellent talents. The information, especially the undisclosed information, owned by an enterprise may assist it to get advantage in the competition. Thus, somebody says that information is money. Some competitors try to obtain and apply, through the means that is contrary to the principle of good faith, those information with great commercial value legally controlled by others. That not only damages the interests of lawful holder of information but also sets off many disputes of a great variety of undisclosed information. Although some of those disputes and illegal actors may be dealt with according to the current relevant jurisprudence and regulations, since the steps of theoretical study often lag behind the development of social reality and due to the sluggish instinct of law, some certain disputes cannot be dealt on legal basis. However, both the solution of disputes and the legislation need relevant religious theory as the footstone. And the theories and legislation on trade secret have the closest relationship with the undisclosed information. The importance of trade secret and the puzzlement of the disputes of undisclosed information propelled the development of the study on the legal protection of trade secret and meanwhile the relevant legislation in world and make the government of different countries come to some agreement. The regulations of TRIPs relating to trade secret is of great significance. Nevertheless, the debate about trade secret has not been ceased. There has not yet common understanding of the nature, institutive requirements, concept and the problems of relevant legislation of trade secret among scholars until now. The author tries to discuss such problems in this thesis. Some suggestions to the legislation of trade secret are provided through the analysis of the nature, institutive requirements and the range of trade secret and also, the relationship of the law of trade secret to be legislated in the future and other regulations is analyzed. This thesis consists of three chapters: In the first chapter, the definition of trade secret is provided through the comparative analysis of the characteristics of trade secret and intellectual property rights. The information similar to trade secret has emerged in ancient times. Today, information becomes a super weapon in commercial competition and the importance of trade secret turns to be more and more significant. Hence, the protection of trade secret attracts more attention than ever as well and most countries add it to their legal protection systems. The nature of trade secret often determine a country's basic theory of the legal protection and is the key to clarify the legal basis, protection pattern and level and the core of the institutive requirements of trade secret. Therefore, the nature of trade secret has great significance in legislation and legal practices. The owner of trade secret holds the advantage in competition to gain more benefits than others by keeping specific information in a condition of secret i.e. unknown to the mass. Therefore, it has certain economic value and further, it is a kind of property. In addition, trade secret is a kind of information and often be stored and presented through a certain media such as paper and electronic data and so on. And it cannot disappear with the ruinof media. But once the information existing as trade secret is disclosed and, as a result, it would not be secret and it is no longer a trade secret no matter how strictly the media is protected. Then it may concluded that the characteristics of property and intangibility accords with be substantial characteristics of intellectual property rights. Therefore, the negative attitude towards that trade secret has the same nature of intellectual property rights needs to be deliberated. When regarding trade secret as the fourth segment of intellectual property rights besides patent, trademark and copyright and dealing with it as a kind of intellectual property rights in the solution of disputes we got the satisfied result according with the real situation. In the second chapter, the author briefly analyzes the institutive requirements of trade secret and points out the problems of the protection of trade secret in our country. Through the research of the regulations on trade secret of the law of developed countries, the author concludes that there are only three institutive requirements including "secret", "commercial value"and "under the circumstances that the owner keeps it secret by reasonable measures". Besides those three institutive requirements there still is a requirement of "practicability"in our country's regulations, which causes the possibility of raising the legal protection standard of trade secret in our country. In addition, the range of the legal protection of trade secret in our country needs further deliberation since the intellectual property rights is an open system and range of trade secret is tending to expand. Further more, other limitations of the legal protection of trade secret includes the disperse of current relevant regulations, the limitation of the subject regulated by Anti-unfair Competition Law and that the secrecy obligations of the administrative sectors is notemphasized. The third chapter is about the suggestions to the perfection of the legal protection of trade secret. Regarding the current status of trade secret protection of our country's law, first of all, it is less than systematic, which is manifested in such aspects as the disperse of the relevant regulations relating to trade secret and that the detailed regulations of trade secret mostly exists in the administrative provisions with lower power and limited range compared with the law issued by the People's Congress. Secondly, that system lacks of practicability. Most of the regulations relating to trade secret is about the principles without detailed specific contents. Take Anti-unfair Competition Law as an example, the institutive requirement of "under the circumstances that the owner keeps it secret by reasonable measures"caused less practicability since there is no limitation of the protection measures but left it to the judge's discretionary judgment in specific cases. Therefore, the law of trade secret with systematic, detailed and practicable contents is of great necessity. Besides, some problems concerning the establishment of the law of trade secret is briefly analyzed in this chapter. For example, the legislative purpose of the law of trade secret such as to maintain transaction order and fair transaction, to uphold business ethics and to promote honesty and sincerity shall be emphasized and trade secret's nature of intellectual property rights shall be clarified and also, the secrecy obligations of the administrative sectors shall be emphasized. At last, from the aspect of the systematization and the comprehensive protection of trade secret, the author briefly argues the relationship between the law of trade secret and paten law, copyright law and anti-unfair competition law and complementary protection of trade secret of...