| With the further development of the reform-and-open policy and of the market economy, China has taken measures to strengthen the legal protection of trade secrets. However, compared with the legal systems protecting, the trade secrets in Britain and America for over a hundred years, China is still under development in this respect. Some legal principles, legal measures and systems are to be established and perfected.As to the system of civil remedies for trade secrets, there is no such a so-called Trade Secret Act in China. With many loopholes among the current laws, disputes have been triggered when issues are concerned with how to resolve the infringement of trade secrets. It has become a major problem for the judicial departments to deal with the issues of this sort.How to perfect the system of civil remedies for trade secrets in China? The author hereby presents an inside study on this topic in this essay by a comparing method, with some practice introduced from American judicial system. This essay is divided into 5 chapter.Chapter 1: Theoretical development of legal protection for trade secrets. By analyzing the elements of a trade secret, the author first illustrates the close relations between these elements and theremedies for torts of trade secrets, proving that such elements have affected and restricted the realization of the remedies from different aspects and in various degrees. Then he suggests owners of the right to trade secrets should be allowed to choose among different remedies to get sufficient legal remedies and to enforce the legal protection of trade secrets, discussing the good and bad aspects of four main remedy theories in the history of the trade-secret protection. Finally, he uncovers the main problems pertaining to the legal remedies provided to the trade-secret owners by the current laws in China.Chapter 2 & 3: two major remedies for trade-secret infringement: injunction and damages. The author thinks temporary injunction plays a unique role in protecting the legitimate interests of the trade-secret owners by promptly stopping the infringement. In China, there is no such injunction in law. In practice, measures of property conservation and pre-execution under the Civil Procedure Act are used to prevent and stop the infringement of trade secrets. Such measures cannot achieve the effects resulted from the injunction. It does not hold its stand in theory that property conservation and pre-execution in China are similar to the temporary injunction in common law. To enforce the legal protection of trade-secret owners, injunction with its merits should be exploited and planted intoChinese law .The author proposes an establishment of "measures of action conservation" and has it analyzed at length. The establishment will supplement the inadequate remedies for the trade-secret owners under the current procedural act. At substantial law, the author thinks the way to grant injunctive remedy for trade secret infringement is not simply analogous to that of grant injunctions to stop the tort of property right; it should be further defied with detailed specifications. In the third part of chapter 2, the author introduces some practices in those countries under common law when injunctions are used to stop the infringement of trade secrets. He illustrates how to implement and improve the legal remedies in China in there using aspects: condition, range and duration when the trade-secret owners are substantially awarded with the injunctive remedy. By analyzing the nature of the auxiliary injunctive remedies related to the injunction, he also thinks in China such auxiliary injunctive remedies should be established. So, theoretically the system of injunctive remedies will be perfected with the aforesaid establishments for the trade-secret infringements.In Chapter 3: the author analyzes the remedy of damages for infringing the trade secrets. It is different between the damages for infringing the trade secrets and those resulted from the property damages. The later is tangible and r... |
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