The Conflict Between Information Disclosure And Business Secret Protection And Its Solutions

Information disclosure system and the business secret protection system has the contradiction and the conflict both in theory and practice. Information disclosure system which belongs to the negotiable securities legislation category originates from the male principles:"open,just,fair".It requests the disclosure of information to be prompt, complete and accurate, in order to protect the general investor's benefit; on the other hand, the business secret protection system which belongs to the counter-unfair competition legislative category has the way of"information security"to attack the unfair competition and protect the listed company's benefit. In practice, on the one hand, the negotiable securities Supervisory department and the investor need the information to be obtained to maintain the investor's benefit, but the excessive information disclosure also possibly causes to reveal business secret and injure the listed company's benefit; on the other hand, to maintain the competitive advantage and maximize its own benefit, the listed company has the full motive of business secret protection, not willing to disclose the information that involves the business secret, however, the excessive protection of the business secret has the possibility to shorten the depth and breadth of the information disclosure and harm the investor's benefit at the same time. Obviously, the conflict does not help construct the stock market to be harmonious, healthy and ordered. Therefore, it's significant to study and solve the conflict not only in theory study but also in practice. Taking this into consideration, this article has analyzed the conflict comprehensively, elaborated the coordinated possibility and proposed the final solutions of the conflict based on the elaboration of the two systems'principles.This article is divided into five parts, about 23,000 characters.The first part is a foreword. It introduces the background, present situation as well as the goal of the research.The second part is the fundamental introduction of the two systems. It has been specifically elaborated not only of the information disclosure system's connotation, necessity and significance ,but also the connotation of the business secret and the significance of the business secret protection, in order to lay the rationale for the following analysis based on the"what, why, how"study mode.The third part is the elaboration of the conflicts. After the representation of the realistic example, the conflict has been analyzed from four aspects as the economic efficiency, the legal value, the principle of legality and the content in detail. In the economic efficiency aspect, this article constructs two cost-income models separately, and elaborates the corresponding contradiction through comparison; in the legal value aspect, this article proposes that the information disclosure's value lies in the maintenance of the investor benefit and the limitation of the trading main body's autonomy, contrarily, the business secret protection's value lies in the maintenance of the listed company's benefit and the protection of the trading main body'autonomy; in the legal principle aspect, information disclosure system requests authenticity, integrity, accuracy and timeliness, but the business secret protection also requests integrity, durability; furthermore, in the content aspect, through the analysis of the special rule of the listed company's periodic report and clinical report in the negotiable securities legislation, it could be found that there exits the range overlap between the information disclosure and the business secret protection.The fourth part is the elaboration of the coordination. The thing is the dialectical unification, not only has conflict but coordinated possibility also. This article elaborated the proper boundaries which the two systems have separately. The information disclosure has the boundary, firstly, this article analyzes the judgment standard of the information disclosure, and discovers that"the materiality standard"itself has the enormous flexibility, especially in our country, this standard has dual sighting target which intensified the uncertainty; secondly, it elaborates the possibility that the excessive information disclosure will violate the legislative goal and affects the steadiness and health of the stock market's progression; Finally, it points out that the function of the information disclosure is actually limited, it is not the only effective medicine which could cure a series of illegal activities like inside story transaction and so on. Business secret's protection also has the boundary, this article indicates that the business secret's protection should be restricted not only because of the right's attribution which make the right deficient, but also because of the request of the benefit. In fact, the boundaries have explained the conflict's degree is limited, the harmonious unification possibility is existed.The fifth part proposes the solutions of the conflict. The solutions are divided into two parts, legislative solutions and judicial solutions. The legislative solutions are divided into three parts, respectively the business secret protection legislation, the information disclosure system's legislation as well as other necessary legal regime's consummation. The article pointed out that the legislation of he business secret protection may only carry on the stipulation on its constitution important document because of its own attribute reason. In information disclosure legislation, the disclosed information is creatively divided into the compulsory, the necessary and the voluntary disclosed information, and the concrete means and rules are made corresponding to each one, in this part, the article especially expatiates the significance of the encouragement and stimulation of voluntary disclosure information; according to the necessary system's perfection, it should be found out of the immediate reason which causes the illegal activity as inside story transaction and so on, and restrains the illegal activities through the rigorous punishment, instead of expanding the information disclosure system's extension at will. The judicial solutions are divided into two items. At first, the article elaborates the civil referee mechanism's conception. It is considered that it doesn't favor the listed company's benefit if the supervisory agency acts as the only examination main body, the civil referee organization should be introduced as the third party. It not only could provide the new option for the listed company, but also would relax the relation between the supervisory agency and the listed company and lower the agency's examination cost. At the same time, the civil referee mechanism's characteristics and the rules will limit the listed company to choose escape the disclosure at will, and filter the real significant business secret. Then the article clears about the ownership of the onus probandi, as the result of business secret right's characteristics, it is considered that limited company should present that the information is firmly relevant to the business secret and the corresponding securities have been taken. It meets the need of balanced benefit, and also helps the supervisory agency hold the initiative in the examination practice.