| During the rapid change on economic structure from planned economy to market-oriented economy, various unfair practices, including cut of tort for trade secrets, have appeared. especially the serious act of tort for stealing trade secrets of the state-owned enterprise and the act of competition for using the former company's trade secrets by the job-changed staff member is happened frequently. As a result, the discussion on the problem of legal protection for trade secrets became a very important current topic of general interest. According to the practice of countriesaround the would the civil protective measures are mainly adopted for protection of trade secrets, but compared with it, the criminal protective measures have the advantages of strong striking force obvious effect, various measures for taking of evidence and compulsory protection. Because of that, a criminal tendency using on trade secrets' protection has been arisen world wide in recent year. However, in this field, no matter the theoretic knowledge or experience of trial, our country is very weak. From macro history to micro analysis, from current status in legislation to judicial definition, this article systematically expounds on the problem of criminal protection difficulty existing in the judicial practice. The aim of this article is to no only perfect the theory and practice of the criminal protection of for trade secrets of our country but also promote our country to fulfill the international obligation after entering the WTO.Form the view of macro history developing, trade secrets is a time honored social phenomenon. The trade secrets protection in modern legal sense is the result of the developing of marked oriented economy and competitive system. It first existed from the case law of Anglo American in the 19th century. From then, it experienced the developing process from Anglo American legal systems to continental legal system, from case law to formal law, from civil protection to criminal protection, from domestic legal protection to international legal protection. Specialization, internationalization and criminalization have become important tendency of legal protection for trade secrets worldwide. With a late start, the legal protection for trade secrets was established and developed step by step. Accompanied with forming, expanding and penetrating of market competitive mechanism, it has followed a track of gradually developing on protective source, protective range as well as means of relief. Undergone over twenty-year rapid develop process. Our country has initially established the legal protective system for trade secrets composed of the method of civil, administration and criminal meanwhile it also faced the dispersion, roughness, inconsistency along with a number of specific problems and difficulties during the legal practice. The inevitable choice to solve this problem is to enact a special systematic protective law for trade secrets. But before its appearance on the stage, the specific difficulties during the indicial practice can be solved stepwise by the way of indicial interpretation of law. In order to assure our country's trade secrets protective level after entering WTO, as well as to efficaciously punish the act of tort for trade secrets.From the view micro angle of trade secrets, as the object of legal protection, the concept of which has also undergone a historical and continuous developed from process. Now days, it has been given a larger definition as a specified "information", its form has developed from oral andwritten form to direction of electronic information. According to the law of our country, trade secrets is the technical and business information which has not been know by the public protective measures by the obligee. It is practicable and can bring economic benefits to the obligee. Much new specific form has turned up during the judicial practice. So proper determination only can be made on grasping the constitutive elements of value, practicality security according to concept... |
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