The Flow Of Talent And Trade Secrets Protection

With the globalization of economy, China has become the biggest manufacturing country in the word. Meanwhile, the rapid development of enterprises expands the demand for talents, and the transfer of employees from this company to another one has become one of the most prevalent phenomenon in the 21st century. Under these circumstances, more and more juristical questions about intellectual property especially the phenomenon of the invasion of company's trade secrets emerge. For that, the leaking of company's trade secrets caused by talent flow attracts more and more attention.In this paper, we discuss the question of protecting company's trade secrets in talent flow in four parts. First, we begin with the definition of trade secrets. In the suits about the invasion of company's trade secrets, most of the reasons causing the dissension come from the parties' unclear recognition of the range and essentials of trade secrets, and both of them insist on their own understanding. Nowadays, the range and essentials of trade secrets have both developed in the contents. The range of trade secrets extends by adding the cognizance of the customer list. In the essentials of commercial secrets, the requirement for practicability is canceled. Meanwhile, positive effects are not necessary in the understanding of economy in trade secrets, and the negative effects are also included in the property of the economy.In the second part, we make an analysis of the conflict of interest between talent flow and trade secret. Talent flow is a basic right of citizens which should not be restricted. However, maintaining the economic system in an orderly way and competing fairly are also important. When the interest of the two parts conflicts, it is natural to think of finding a reasonable way to balance the conflict. The establishment and improvement of the non-competition system present an important way to solve the problem.In the third part, we put an emphasis on the introduction of the non-competition system. Non-competition includes two cases, legal one and stipulated one. To the former, both obligation subject and obligation rangehave literal rules in law, and it is easy to perform in practice. There is little difference of legal non-competition system in the law of every country. Stipulated non-competition system is generally regarded as the non-competition agreement, and its contents are stipulated by the parties. As non-competition relates to the limit of the citizens' labour right, the cognizance of the non-competition agreement is gingerly. And the theories and practice of non-competition agreement in each country or district turn out to be different. In our country, the stipulation of non-competition agreement is embodied in local statutes, and it doesn't reach the height of law. This is related to the current situation of the construction of law in our country. From the theoretic aspect, we put an emphasis on the cognizance of the effectiveness of non-competition agreement including the objects, area and deadline of the agreement. The aim is to avoid too much interference and limits to the employees' labour right, and at the same time to give effective protection to trade secrets, and to maintain the economic system in an orderly way. In the theory and practice of non-competition agreement, the Inevitable Disclosure Doctrine which is a supplement of the agreement should be used more careful. In the forth part, we give some suggestions about the legislation of the protection of trade secrets in the talent flow.