Trade Secrets Infringement

Business secret refers to the technological and managerial information, which is not publicly known, practical, kept secret by its owners and can bring economic benefits. Therefore, the business secret right is one kind of civil right, and the business secret tort is the tort in civil legal. The author, as a attorney, dividing the thesis into five parts, analyzes and studies the right property of business secret, the must constitutive condition and expressive forms of the tort behavior of business secret, legal cognizance of business secret and lawyer's litigation skills in tort cases, legal responsibility of the tort behavior of business secret, and finally puts forward the not much mature advice on perfecting the legislation of legal system about civil tort behavior of business secret.Legal protection for business secret originates from Britain and U.S., and gradually spreads to all over the world. At the present, the legal safeguard of business secret has formed rather mature system in many countries of the world. If mainland legal system country and so on Germany, date also one after another established take "Counter- Not Right Has competed Law" as a center, by legal constitution and so on contract law, civil law, criminal law business secret legal protection system. By the development of the society, business secret goes through the three stages: static state, dynamic state, and the state of supplement with the patent system each other. Law on Anti-Unfair Competition issued on September 2, 1993 in China, for the first time legally defined the concept, scope and constituent conditions of business secret and several types of tort of business secret, and defines that business secret includes technological and managerial information. Afterwards, the revised "Criminal law" in 1997 increases the crime business secret infringement, which enables our country's business secret legal protection system more completely.Now, the tort act of business secret expresses primarily as follows :①illegally obtain the business secret;②illegally publish and use the business secret;③obtain, in a legal way, the business secret published and used illegally;④The third people impinges the business secret. These infringements behavior has such characteristics as follows:①combination of the legal obtaining, legal publishing and legal use each other; ?co-existence of technological secret tort and managerial secret tort; ③co-existence of illegal act and tort act;④The tort cases increase year by year. Infringing upon the business secret disobeys the fair competition of the market trade standard, destroys the normal competition environment, and seriously harms the owner's legal benefits.In the tort litigation of business secret, the right person undertaking the proof responsibility mainly proves the infringement person has been engaged in the infringement behavior. In the hearing, the judge, according to the proof standard of highly probability ,should protect the right person from violation, standing on the principal of protecting the right person's property and punishing the infringement person, putting the rules of "proof responsibility inversion" and "the mistake responsibility estimated" and so on into use; But attorney should take full consideration and make the preliminary judgement, about whether the behavior of the defendant satisfies the tort condition of business secret. Therefore, whether attorney can look for the secret spot correctly is the core of tore lawsuit of business secret tort, which influences the entire case lawsuit effect.If the business secret right suffers violation, the right person will suffer great losses which is unable to estimate, but the tortfeasor must receive sanction, and undertake the civil or administrative liability, and even legal responsibility. On the contrary, the right person of business secret also must protect this kind of intangible asset in the best discrete. The civil responsibility of punishing tort behavior in our country includes violation stopping, influence elimination, public apology, paying indemnity for damage and other forms of civil liability (such as danger elimination, hindrance removing, property return and so on). The administrative responsibility usually is implemented by the administrative department which requests the tortfeasor stopping the infringement behavior and punishes the tortfeasor by the certain amount fine. The crime encroaching upon business secret of the criminal law has two discretions of punishment scopes: one is the imprisonment below 3 years or imprisons, and the same time or the list place fine; the other is that if the special serious consequence occurs, there is the imprisonment below 3 years- above 7 years, at the same time the fine.Because there is trade and exchange, it is more and more dangerous for business secret, and the danger of publishing business secret exists. The most effective way of handling this danger of publishing business secret is that the obligee should have more legal knowledge and advance the legal consciousness, and our country should perfect the lawmaking about business secret. The goal is to safeguard the obligee'right of business secret. So, it is necessary to further perfect our legislation system on business secret by regulating the rule of punitive indemnity of business secret and enlarging the responsibility body and responsibility scope of the legal liability of infringement behavior of business secret, because many countries in the world more and more emphasize on protecting the business secret today, and we need driving the development and communication between our country and other countries to force the Chinese market to be engaged into the world market.