Research Of Some Problems On Prohibition Of Competition In Same Industry System In The Protection Of Trade Secret

There can never trade war without secret. The enterprises have taken measures to keep the technological and managerial information as their own trade secret which can bring them profits and which are not familiar with the pubic so that they can have a position of advantage in the competition. However, even the strictest measure can never prevent infringement by unjust competition because people can still find the hole. In our country, along with the market-oriented economy gradually consummation and the development, talented person's freedom flows already becomes one kind of inevitable trend, many staff frequently change job. Because many changes job the staff has grasped the original enterprise's trade secret, this competitor's enterprise then does not hesitate the large sum of money to employ them. In under the high wages enticement, many employees change job in abundance, at the same time the original enterprise which grasps it regards as the most precious object the trade secret to disclose for competitor's enterprise use, causes the original enterprise the competitive advantage to sell at a discount greatly, the economic loss is serious. In addition, leaves job the employee to use phenomenon also suitable universal which the original enterprise trade secret starts an undertaking. For this reason, enterprise often seeks help for the system of prohibition of competition in same industry (PCSI) limits the employee to flow to competitor's enterprise. Through the PCSI system establishment, may effectively prevent in the economic life in the certain degree day by day the rampant trade secret abuse of authority.The PCSI system has been a legal measure to protect trade secret in western developed country, which has been used popularly by the employer. With the development of the market-oriented economy, the areas it can be used is increasing. Now it has become an important regulation in Civil Law. There are broad and narrow ways to define research, I define in the narrow way as to prohibit the competitive who have specific civil legal relations with specific business. Based on the legal rules or agreements between related parties, the obligation of PCSI is not to act. PCSI is confined in time and space. The theoretical foundation is based on agent cost theory in economics and honest principle, freedom of contract principle and reasonable limit competition principle in legality. The systematical value is to protect trade secret, and to promote the top management, so that the trade interest is protected eventually. But ,at present, we haven't established complete legal system as to the legal stipulation on the PCSI system in the protection of trade secret. Because the legal system is imperfect,when the reality, the enterprise with signs the convent not to compete, appears all sorts of is not standard, like limit period excessively long, the suitable object too is broad, scope oversized and so on, seriously has harmed worker's legitimate rights and interests. In jurisdictional practice, how to protect the trade secret efficiently, and how to defend the workers' legitimate rights and interests fully, have been a law contradiction which need to be solved urgently. The thesis is trying to study the basis questions of trade secret and PCSI, the legislation mentality and legal protection pattern of the PCSI system in the protection of trade secret in our Country, the present situation and existence question of convent not to compete and dispute solution with the comparative analysis and value analysis method of legal science and economics. The expectation to our country the PCSI system in the protection of trade secret legislation to some model functions, enables its the more powerful protection trade secret, maintains the fair competition the social order.This thesis starts with trade secret and makes it as the base for the issue to PCSI and draws the conlusion that talents mobility is the main cause that leads to trade secret infringements and it is a good way to establish the PCSI system. This thesis then elaborated the PCSI meaning and its the related legal science theory, proposed our country should adopt"the prudent affirmation and the strict limit"legislation mentality and the legal protection pattern. In view of convent not to compete present situation in our country, the thesis from aspect and so on legislation, judicature proposed some feasible consummates the suggestion. The author lists seven criterions to judge the reasonableness of convent not to compete. Those criterions are the precondition for convent not to compete, subjects who shall bear the responsibility in convent not to compete, scope of convent not to compete, time limit of convent not to compete, geographic scope of convent not to compete, compensation for employees and the form of convent not to compete. And for the issue of covenants not to compete, it must adopt special issue management system, such as Implements dually recognized the standard, presents evidence the responsibility inversion, the model overseas prohibition rule system and so on.The legal life lies in the practice, studies PCSI system in the protection of trade secret, is must use the reasonable PCSI system limit not right to compete the behavior occurrence, protects in the market economy the health to have the foreword the competition environment and the trade secret owner legitimate rights and interests, prevents person to destroy the market competition order and the infrigement trade secret illegal intention. Is must use the reasonable PCSI system limit trade secret owner, does not have to abuse the competing industry prohibition, increases the serious burden for the employee, protects employee's lawful right not to violate. PCSI took the trade secret protection the important method, it concerns the trade secret protection system in the legislation consummation the establishment, the employee legitimate rights and interests protection as well as the market economy has the foreword to compete the order maintenance and the healthy development. Therefore, is has the theory and the practical significance extremely to the PCSI system in the trade secret research.