Commercial Secret And Legal Protection

Commercial secret is the inevitable product of private ownership and market economy. It has become an international issue to which great attention is paid. How to scientifically define it and understand its component parts is extremely important. A definition given in China's Act of Fighting Against Unhealthy competition is almost in agreement with the provisions of the TRIPS. According to this definition, commercial secret is through to be made up of four parts, namely, not to open to the public, economic, practical and confidential, ranging from technological information to managing information. There are four basic categories in violating commercial secret based on legal provisions.The main theories of legal protection of commercial secret are as follows: the theory of property right, the theory of contact; the theory of torts and the theory of fighting against unhealthy competition. Commercial secret is a kind of intangible property, a special kind of intellectual property right. The theory of fighting against unhealthy competition is established on the basis of adapting to new situation and is a valuable supplement to the past and the present theories.Different countries may have different ways in protecting commercial secret, but it's generally believed that there are two main kinds. The first is to protect commercial secret through civil law, criminal law or other laws. The second is to protect it by making special act. China has undergone a complicated but very important process in protecting commercial secret. A system of commercial secret is gradually taking shape and developing.The legal protection of commercial secret is enhanced from both the substantive law and the procedural law. In the substantive law, there are civil protection, administrative protection and criminal protection. The civil protection of commercial secret is mainly based on the Torts Act and the Contract Act. In judicial practice, the main ways ofundertaking the civil liability for violating commercial secret are to compensate for a loss or to pay fine for breaking off an engagement. The administrative protection is mostly realized by the authorities concerned, which are responsible for investigating and prosecuting the torts. Both the civil protection and the administrative protection play a very important part in protecting commercial secret, but there is a long way to go for the criminal protection. In the judicial practice, we are faced with a lot of problem, such as the civil relief in criminal suit, the. appraisal and the application of fine penalty, all of which need to be solved.In the legal system of protecting commercial secret, several difficult problems need to be known. They are the issue of protecting commercial secret in cyber environment, the issue of limiting the right of commercial secret. The consequences of torts in cyber environment are very serious. And what's more serious is that it's difficult to control the diffusion range of the consequences. In the light of the features of both commercial secret and cyber space, more rigid and more flexible measures should be taken to keep the commercial secret. Meanwhile, we have to be aware that the exercise of any right is not absolute. The protection of commercial secret which is a special kind of intellectual property right that plays a vital part in social economy and scientific and technological progress needs to be limited. Otherwise, it will contribute to the monopoly of economic development and hinder the scientific and technological development.In today's society, commercial secret is the lifeline of enterprises. We must further perfect our country's legal system of the protection of commercial secret, such as making the Act of Commercial Secret Protection as soon as possible, strengthening the self-protection and the judicial protection of the people who own commercial secret, making full use of international practice.