| The business secret is refers does not learn about for public,can bring the economic for the right person, has the usability andtakes the security after the right person the technical informationand the management information. Present, along with the science andtechnology unceasingly widespread thorough development, the businesssecret status and the function will be able to appear increasinglyimportantly, once is revealed or is embezzled by the other people,will be able to give the loss which the right person will create isunable to estimate, this article through to the domestic and foreignbusiness secret legislation situation comparison and the research,will analyze our country business secret protection system the successand the insufficiency, apply theory to reality, proposed to thebusiness secret protection from already the idea, and proposed at inthe model overseas business secret protection experience foundationabout will formulate our country "Business secret Protection method"tentative plan. The full text altogether is divided into six chapters, bymean brief summary.The first chapter discusses business secret legal protection historical evolution.The business secret took one kind of wealth, on had been far known inthe ancient times by the people. But carried on the legal protectionto the business secret is in England in 1817 England's Morison v. AMoat document, is the official foundation legal precedent protectionbusiness secret precedent, but the American law association in 1939"Abuse of authority Law Iteration", for the first time carried on thelegal protection to the business secret; Therefore, the secretprotection divides into three stages from the protection historyangle. From slave society early time to 18th century first IndustrialRevolution. The secret basically is at the spontaneous protectioncondition, but the roman law had stipulated the resistance trapsthe business secret right infringement person's lawsuit system. Fromthe first Industrial Revolution to the 20th century 50's is thebusiness secret legal protection development phase, this time,England, America and so on many countries, the business secret thecivil law, the criminal law, not right competes specific law and so onlaw, abuse of authority law carries on to the business secret theprotection The business secret legal protection scope also expandsfrom the technical secret to the management secret. From the 20thcentury 50's until now, the business secret legal protection system,tended to the internationalization.The second chapter discusses the recognizaation and the characteristics of the business secret. In the analysis, compares American, Japanese and in the Tripsagreement stipulation concept foundation, the author thought thebusiness secret is refers to the natural person, the legal person andother organization has, does not learn about for the public, can bringthe economic for it, have the usability and takes the security afterit the commercial information. In this foundation, our country hasdefinitely legislated the legal limits which does to the businesssecret, and thought the business secret is one kind of special shape,has the property right characteristic; Summarizes thebusiness secret characteristic for following four: Secret, usability,value, secrecyThe third chapter describes the infrigement business secret behavior. In analyzes American, the Japanese correlation law toencroaches upon the business secret the behavior stipulation, hasanalyzed our country existing law stipulation in this foundation,summarizes our country correlation law system to encroach upon thebusiness secret behavior to stipulate. Firstly, it must tally encroachesupon the other people business secret the main body condition. Secondllly, the behavior person on subjective must be stems from intentionally. Thirdly, the behavior person on is objective implements hasencroached upon the other people business secret the illegal activity. Fourthly, the behavior person encroaches upon the business secret thebehavior, has created the harm to the business secret right person. Fifthly, between the infrigement business secret behavior and the harmresult which the behavior person implemented must have the causalrelation. At the same time, looking from the historical development viewpoint, successively appeared six kinds in the theoryto have the representative theory: Contract theory, destruction trustrelations abuse of authority theory, property right theory, drivemachine-made theory, hindrance request power theory and competingindustry prohibition theory.The fourth chapter illustrates encroaches upon in the business secretlawsuit several special questions.According to the civil law theory, is uses the rightinfringement to a case to sue or breaks a contract it to sue, choosesby the plaintiff. But does not have simultaneously the rightinfringement to sue the responsibility and to break a contract it tosue sues, is cannot obtain in legal the support. Next elaborated ourcountry does present evidence the responsibility the principle ofequality is "who advocated, who presents evidence", presents evidencethe responsibility inversion is this principle exception. Caused plaintiff's losses once more on the business secret abuse of authority, the example has lifted American and the our countrycomputation different method, the determination right infringementcompensation amount. Most elaborated in the business secret lawsuitpreserves the measure. Is refers in here acts according to in the ourcountry civil procedure law the related system, the plaintiff for theprotection business secret may the precautionary measure which appliesto the people's court, preserves including the evidence, the propertypreserves, first gives the execution to preserve the form to performto protect.The fifth chapter describes the infrigement business secret legal relief system. Taking Japanese, the American law stipulation andthe judicial solid service as the basis, introduced, has analyzed theinfrigement business secret legal relief system. And unifies itsjudicial practice and our country business secret protection lawcarried on the comparison proof, to encroaches upon the businesssecret to our country the legal relief measure to carry on thecomprehensive proof, but, the author thought still had someinsufficiencies: first, when does this law stop the illegal activity tothe right infringement person the time not stipulating that, meets theactual need with difficulty, counteracts to the legislation objective; second, the court compensates the volume to the right infringement personto have the very greatly free power. Has like this enlarged rightperson's presenting evidence, is disadvantageous to the right personlegitimate benefit protection.The sixth chapter discusses consummates our country business secret protection thesy stem suggestion. On the basis of the success in the establishment business secret legal protection system aspect since 1985 reform and open policy. the author dicusses the overseas business secret law system success and the model analysis, then elaborated proposed our country " Business secretProtectionmethod" In the legislation objective, the related mainbody scopebusiness secret abuse of authority question, the infrigementbusinesssecret legal liability, the business secret right nershipquestiontentative plan. |
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