On The Pluralistic Legal Regulation Of Commercial Secrets

In recent years, particularly after the enforcement of the Unfair Competition Law,trade secret and its protection become a problem being argued and studied in the circlesof the judiciary and academic. There are urgent needs for us to study and promote tradesecret protection, and formulate a "Uniform trade secret law of P. R. China".The trade secret legal protection system is gradually established along with thedevelopment of Industrial Revolution and market economy .The legal protection oftrade secrets in Britain and USA under common law systems is rather developed, whilecontinental legal systems in France and Germany, the legislation and legal protectionhas come to perfection. With the continual promotion of science and technology inbusiness circles and the coming of knowledge economy, the legal protection of tradesecret has been gradually expanded, ranging from the technical secret such asmanufacturing technique to business secret, thus nowadays trade secret has been definedas technical information and business information. It fully demonstrates the growingexpansion and extension of trade secret legal protection as well as the introduction ofinternational treaties in this respect. TRIPS have delivered the basis and know-how fortrade secret legal protection.Compared with the legal systems protecting, the trade secrets in Britain andAmerica for over one hundred years, China is still under development in this respect.Some legal principles, legal measures and systems are to be established andperfected .Historically, the legal protection of trade secret can be roughly divided intotwo groups: protection by way of the Civil Law, the Criminal Law and other legalregulations;protection by way of specific legislation. The former protection is adoptedin China, with protecting legal provisions in the Civil Law, the Criminal Law andconcrete protecting measures in the Contract Law, the Labor Law and the UnfairCompetition Law. However, compared with western legal protection systems andTRIPS, there still exist some flaws and drawbacks in China's current multi-protectionsystems. For example, how to solve trade secret infringement litigation, coordinate thelegal rights and interests of all parties concerned and maintain an equitable competitionorder still need to be settled. By using the comparative research method and drawinglessons from the experiences of European and American legislations, the author hasconducted a visualization and research theoretically in current multi-protection systemsin order to make a further study of the further perfection of China's trade secret legalprotection systems.Logically, this paper is divided into four parts.Part one: study of the definition of trade secret. On the basis of this, this papermakes a detailed analysis of its elements, that is, secrecy, values and confidentialityidentifies that trade secret belongs to the intellectual property, as well as the differencebetween trade secret and the other types of the intellectual property, e.g. the patent, thetrademark right and the copyright. From this, this paper derives the legal attribution andits content.Part Two: concerning China's legal protection of trade secret with basic law andspecial law. Particularly, the Unfair Competition Law adopts two kinds of protections ofadjustment of trade secret : positive and negative, defines the infringement of takingadvantage of trade secret illegally;illustrates the speciality of this infringement as wellas its manifestations. At the same time, the law also makes an analysis of severalbehaviors of taking advantage of trade secret legally.Part Three: presenting the reason of multi-protection adjustment in terms ofprotecting the intellectual creation of the proprietors,balancing the contradictionbetween protecting trade secret and promoting talents flow,personal rights attributionof trade secret,the obligation of duty of top management in corporations,maintainingthe entire social competition order. The legislative stipulations in developed westerncountries, such as USA, are also listed in this paper. At the same time, the paper gives abrief account of legal adjustment of administration, civility, and crime.Part Four: How to perfect the current legal protection system of trade secret in thismulti-adjustment system. With regard to legislation of Civil Procedure Act, we can learnfrom temporary injunction in Anglo-American common law. As to legislation ofCriminal Procedures, the author proposes an expert-jury system, regulating undisclosedsystem. The paper also adds restrain of trade to the perfection of Contract Law. Relevantrules and regulations are included and perfected in the Labor Law,the UnfairCompetition Law and the Criminal Law.