The Research On The Legal Protection And Relief Of Trade Secrets

Trade secrets are those certain information which are not familiar to the public, having real or potential commercial value or being able to bring competitive advantages, and would not be publicized for a certain period through the reasonable steps by the person lawfully in control of the information. In the information economy era, trade secrets, as the life origin of enterprises, will definitely become the technology power and management power of the whole country's industry. Then, it will be the significant property base of economic development. The law protection and salvation of trade secrets are attracting people's attention more and more. As for the protection of trade secrets, the countries all over the world have experienced the course of careless to careful, narrow scope to wide scope, domestic law to bilateral treaty and international treaty even global pact. In general, that's "the widening scope of protection," "the strengthening intense of protection" and "the internationalization and globalization," which are the three developing tendency and notable characteristics.The general elements determine the protecting scope of trade secrets. Though the forming elements of trade secrets set by the law of different countries are not completely the same, the characteristic of secret, commercial value and management are the basic elements included commonly by the law of all the countries. Concluding the arguments on the elementary theories in the field of domestic law particularly, the writer beholds that under the international tendency of the widening protecting scope of trade secrets, the point of view that the general elements should have four or five elements will directly result in the decrease of the protecting scope of trade secrets, which is against the international tendency, and will be useless in promoting the progress of the research theories of trade secrets. Someone also beholds that trade secrets should have originality. However, originality, as the general element of trade secret lacks law foundation. It's meaning itself dictates that to some extent, it can only be the symbol of secret. In addition, the concept of trade secrets in our country also include the element of being practical. But logically, it cannot be independent from being valuable. Moreover, in reality, it's been outdated, facing the fate of being deserted by the theory field and reality.On the issue of which kind of law right should the property of trade secrets should belong to, various theories of personality right, enterprise right, information right, property right, etc. come into being all over the country. The writer beholds because of its invisibility and the attribute of property right, it should belong to the intellectual property right of the civil right system of our country. What's more, its comparative monopoly and easily fading characteristic determine that it's only a new kind of intellectual property right which ranks with the traditional intellectual property right.Trade secrets, once lost, is hardly can be retrieved. This feature decides that the relief method of trade secrets should focus on pre-happening relief. Our country, the same as many continental law system countries, employ《anti-unfair competition law》to protect trade secrets. However, this law, with outstanding executive color, which focus on the compensation for the damage afterwards in the case of civil right relief, can hardly achieve a scientific and effective law relief system. Take a broad view of the excellent legislation cases abroad, the Britain and American law system possess the distinctive advantages on the protection of trade secrets. The writer makes a research on America which is the most perfect in the protection of trade secrets and gives an introduction. America's ban relief system can not only assure the mature protection of preventing before, stopping in the middle and avoiding happening again afterwards, but also develop the balanced theory which can give consideration to the interests of various interest owners. It has set a good example for our country to set up the ban relief system of trade secrets. Besides ban relief, the preserving system of trade secrets during the litigation period and the protecting system of trade secrets in the 337 survey also make up for the building and perfection of the law protecting and relief system of trade secrets in our country. In order to illustrate the absorbing and transplanting effect of the ban relief system in the continental law system, the writer takes Japan which also started a little late but got remarkable achievement on the law protection of trade secrets, as an example. Mainly focusing on the commanding system of punishing temporarily, writer makes a research on Japan's law protection and relief of trade secrets and introduces it. The writer thinks that Japan's command of punishing temporarily, no matter for its content, purpose or its procedure of practicing, is the copy of the relief of Britain and American law system. It's practical for our country to bring in the ban relief system.Through the objective analysis on the actuality of the law protection and relief of trade secrets in our country, the writer figures that the problems are as follows: firstly it's the problem of the rich color of executive protection, which will surely causes the second problems, that is the powerlessness of the protection and relief of civil law. From the point view of the structure, there are the problems of careless system and loose structure. Based on these problems, the writer, applying to long space, tries her best to put forward her suggestions and trade secrets in our country. The following are the three parts. The first part is to suggest drawing the special law for trade secrets, including the necessity of drawing law particularly and some suggestions on the course of drawing the law. The second part concerns on the suggestions and thoughts of the perfection of civil law protection and relief. The writer reckons that in order to perfect the present law and relief system, the perfection of civil law protection and relief should be the best and the most powerful way of protection of trade secrets. The third part, considering America's preserving system of trade secrets during the litigation period and the protecting system of trade secrets in the 337 survey, the writer introduces some thoughts and suggestions concerning the procedure law, the execution law, etc. which are also one of the new point of views, put forward by this paper.During the research course of this paper, the writer applies to the research method of comparing, the logical analysis method, etc. Applying various kinds of methods, researching the law protection and relief of trade secrets in our country from different angles, the writer introduces her own thought and some viewpoints which are somewhat original.