Under The Labor Contract Law Perspective, Labor Relations And Trade Secret Protection

Firstly, this thesis discusses the legal protection of business secrets from the perspective of work relations, especially with analyze of LAW OF THE PEOPLE'S REPUBLIC OF CHINA ON EMPLOYMENT CONTRACTS, Secondly analyses the fundamental legal principle on which employers and employees should take proper secret-keeping obligations., it analyses the nature and the constituents of the infringement upon business secrets. Thirdly, it discusses the legal remedy methods of the employee's infringement upon business secrets. Finally, it makes suggestions on the improvement or perfection of the law in China through the insight into the current situation of legislation.Part one and Part two are about the concepts of work relations and business secret protection. Work relations or labor-capital relations involve a relationship of subordination in identity, so labor contracts possess the properties of deed. Therefore, the loyalty obligation of employees for their employers comes into being which includes keeping the business secrets and prohibition of business strife.Business secrets include technological and economic information, and the constituents of them determine the concept. The main properties of business secrets are secrecy, value, novelty and protection measures, which are reflected in the laws of different countries. The Antic-unfair Competition Act of our country consists of four constituents, namely, secrecy, value, practicality and secret-keeping .Among the four, the regulations related to practicality should be modified because they are too rigid .Since its part of human rights for employees to master general knowledge or information, accumulate experience and skills, the author argues whether an employee has revealed the secret is ascertained by the nature of the information, the process of the information-generating and how the employee obtains the information. The premise of solving the problems of the violation of business secrets and business tort is the determination of the right relations of business secrets. A natural person can own business secrets, but there is no clear elaborations concerning the ownership of business secrets. This thesis discusses the ownership of business secrets from two aspects of positional and non-positional business secrets through the reference of patent and non-patent rules. Besides, the author of the article points out that the ownership of business secrets should be agreed on according to contracts. The earliest contract theory developed into the secret theory or quasi-contract theory. Property right theory was established later. The main difference between the contract theory and the secret theory is that the former is based on the contract involving contract-violation responsibilities if the contract is broken, but the latter is based on the law involving tort if the law is broken. However, the obligation body of the two is as pacific person, which is similar in nature to the property theory hat endows the property right to the business secret, which the obligation body is not a specific person. Consequently, it lays foundation for the criminal protection. The protection of business secrets involves the balance of benefits among the owner of the secret, the society, the competitor and the employees. The core of the balance experiences the shift from enterprises, employees to the public interests of the society.Part Three about the tort of business secretes in work relations. When it comes to the types of the tort of business secrets, the body of tort, tort itself and the subjective motivation are centered in the law of some countries, but the ways of tort-outlining are quite different. Summarizing up the relating acts of China the types of the tort of business secrets are generalized as illegitimate, legitimate but misusing and subjectively purposeful. The features of employee tort of business secrets are specific in form, concealed and intangible, against the explicit obligation and accompanying the transfer of employees. In terms of the nature of tort, employees' infringing upon business secrets is certainly civil tort first, sometimes a combination of civil tort and treaty violation, and still sometimes a mixture of the two plus illegitimate competition. But in very special circumstances, employees' infringing upon business secrets constituents illegitimate competition.Part Four is about the ways of protecting business secretes in work relations. Mainly there are two ways of protecting business secretes in the labor-capital relations: secret-protecting obligation and non-competition. In this part, concerning the ways of secret-protecting obligation, the basis of the secret-protecting obligation, the important secret-protecting acts ,the labor contract acts and the choice of secret treaty are discussed. In addition, non-competition is discussed from the two aspects of legal and agreed non-competition. Legal non-competition restrains the people in post, the agreed non-competition restrains those people off post, and in terms of the body, the former is specific, on the contrary the latter is non-specific. The freedom of agreeing on non-competition is embodied in whether a non-competition contract is signed, and what's more, the law strictly restricts its content, f the content of the contract is against the conditions, the contract is invalid. Also in this thesis, the relationship of the secret agreement and non-competition is discussed.Part Five is about the legal remedies for the infringement upon business secretes in work relations. When infringement upon business secrets takes place, three types of remedies can be used, namely, civil, administrative and criminal remedies. Civil remedies include the demand for stopping the infringement, the demand for guarding against the infringement, the demand for the return of possessions, demand for the compensation of the loss and the demand for the restoration of the credibility. In China, the law regulates the administrative remedy measures, but in foreign countries, even if the business secret tort is identified as illegal competition, there is no administrative responsibility. In the long run ,the administrative responsibility should be cancelled under the same or similar conditions in China. It is possible that the regulations for business secrets in China's criminal law are the overall and the most rigid. In this thesis, it is argued in the labor-capital relations, if the infringer learns the business secrets at work, generally speaking, keeping business secrets is a treaty obligation derived from the relative contract, which is agreement responsibility not legal obligation. Therefore, greater importance should be attached to investigating contract-violation responsibility under the law instead of criminal responsibility. Part Six makes suggestions on perfecting the Law of protecting business secretes in labor-capital relations. In relation to non-competition, it is necessary to raise the law-makingstandard.No.16 of The Labor Contract Act(draft)is a means of perfecting it, but it is not specific or clear in words, and it should specifically clarify that economic compensation is the premise for the competition restriction agreement to come into force. As to the establishment of remedy measurement for the tort before the appeal, the thesis suggests that regulations or acts should be made by revising The Antic-unfair Competition Act or making a specific law for keeping business secrets so as to be in agreement with other patent right remedy measures or to meet the lowest requirements of TRIPS. As regards to the standard of loss compensation and punishment, the suggestion that the victim choose from the two, one is his/her real loss, the other is what infringer has obtained by means of infringing. Meanwhile, the sis suggests strictly restraining the responsibility, the preconditions and the standard of the loss compensation. About the evidence-providing responsibility for business secret tort, the people's court defines it anew at trial of such cases, but it does not mean evidence provided by litigant. So another suggestion here is to change the relevant appeal procedures to clarify the principle linked with evidence provided by litigant. In the end, talking about making a specific business secret protection law, this thesis makes some suggestions involving the aim and the position of the law, the range of adjustment and the main content.