The Identification Of Business Secret

With the advent of the market economy and information society,information has become an important strategic resource and property form,thus the business secret which is in the pattern of information,increasingly gives rise to the enterprises' attention and favor.The trend of courts' accepting business secret torts cases is upward,and how to define the business secret is a "threshold" problem in the important prerequisite to protect the rightful owner. However,the legislation and jurisdiction of business secret in china are facing many challenges because of their privacy and invisibility.It is controversial on many problems,such as not known for public which means how to judge the business secret,s privacy,whether it is practical,as well as how to identify the reasonable secretkeeping measures of it.How to solve the problems mentioned above,this essay discuss the problems relating to how to identify and grasp the scope of business secret,by referring to the legislation and judicial experience of developed countries and international,and combining with our country's conditions of legal protection of business secret and judicial practice.The essay is divided into three parts besides the foreword and epilogue:Part one:After a comparative study on the definition of business secret of different countries in the world,the author's idea is that there's no need to insist on the definition of business secret.How to reveal the construction elements of business secret and make it clear is more important.Part two:This section focuses on the construction elements of business secret.Firstly, referring to the foreign legislation,case law and international conventions,the author personally believes that business secret should at the same time have three construction elements:privacy,value,and manageability.Secondly,this part analyses their precise meaning and connotation..What's more,because the privacy and the manageability are not only the core elements of business secret,but it's also difficult to identify in practice,so the author deeply analyses them.Privacy,should be recognized from the following five aspects:the requirement of the person who knows the business secret,the object which is known,the way which is known,the degree which is known,and the reign which is known.The key to manageability is how to understand the rationality of secretkeeping measures.There should be a legal premise to require reasonable secretkeeping measures,which is the obligation of business secret is seen as a person usually has the normal mind.Under its attention in the normal state,employers or others should be aware of the existence of business secrets This is why the obligation must still keep secret when the rightful owner is careless.In fact,secretkeeping measuress should have two directions:the first direction is the direction of the above-mentioned obligations,the second direction is the direction of the rightful owner,which called for the rightful owner to take reasonable secretkeeping measures in specific circumstances.In addition,combining with specific cases,the author discusses what should be paid attention to,when identifies the privacy and manageability in judicial practice.Finally,After analysing the specific connotations of practical use,the author believes the practical use should not be the construction element of business secret.A concrete manifestation of practical use is the objectivity,the specificity and the certainty.It will narrow the protecting scope of business secret if requires excessive practical use.The practical use emphasizes the information can be useful,so that it rules out all those useless or impossible information in its commercial activity,but the information may be of great value,probably bring large economic interests or competitive advantage to the owner.In addition,the practical use and the value are closely related,the practical use is the basis of the value;the value is the result of the practical use.So the author believes that the reasonable core of practical use can be the requirement of value,as a result,not only the owner of information can be fully protected,but also it is in line with the requirements of the TRIPs which stipulates the qualified protected information is without "the practical use".Part three:The author makes analysis of the scope of business secret,discusses the specific connotation of management information and technology information.In addition, the author makes a distinction between technology information and non-patent technology, know-how,and identifies the business secret characteristic of the client list.At last,the author analyses why it is reasonable to limit the scope of business secret to management information and technology information,...