Noncompete And Trade Secrets Protection

Trade secret, a new member of intellectual property system, is of higher commercial value, and maintains competitive interest to enterprises in the fierce market competition. Talent flow, which is inevitable in the intellectual era of economy, is of great significance to the market competition and improves proper human resource distribution. However, the leaking of trade secret caused by talent flow becomes more and more serious. Trade secret, special information of property, is characterized by its secrecy, that is, it will not exist if it loses. Therefore, very limited role is played by the after-taking judicial relief measure, and a great many countries put emphasis on how to effectively protect trade secret in theory and legislation. As a precautionary measurement, non-competition exerts an important influence on the protection of trade secret. Employees often have to sign the non-competition contract with employers in order to protect trade secret effectively. Its advantage is that the real invasion of trade secret does not take place, and it assumes real taking as long as resigned employers take on the job in the corresponding enterprise. Inevitably, non-competition causes right conflict in that it exerts influences on the freedom right of selecting job as well as living rights. The key to the solution of the related question of non-competition lies in the way in which the proper range is selected and the balance of interest is achieved among employees and employers and the society in the non-competition contract. Form the perspective of trade secret protection, the thesis is intended to study trade secret and consists of three parts.The first part provides an overview of the basic theory of non-competition and trade secret protection. The historical development and the classification as well as feature of non-competition are first discussed. Then, its legal characteristic is drawn through analyzing the concept of trade secret, and the three kinds of theory are comparatively analyzed. Finally, the relation between non-competition and trade secret protection is analyzed and the conclusion is drawn that non-competition is an effective measure which is not only one to protect trade secret.The second part focuses on the reasons why non-competition in the trade secret protection is used. Its necessity is first analyzed, and then its justice is analyzed in the following five aspects: justice of goal; honesty and credulity; proper competition; justice of contract and balance of interest. Finally, practices in some countries and regions are introduced, which have one point in common that non-competition must be properly restricted in order to maintain balance of interest among employees and employers and the society.The third part deals with non-competition contract and trade secret protection. According to the above analysis, five aspects in the non-competition contract should be restricted from the perspective of objective, business, district, period and remedy. Civil liability is finally studied, including its formation condition, method of civil liability bearing and release on non-competition.