Application To Statutory Compensation In Trade Scret Cases

It is difficult task to determine the liability in judicial practice, whentrade secret is aggrieved. The main problem is the lack of compensation, thereceive compensation for right holder can not compensate for its loss.China's law provides for four trade secrets compensation methods. Theyare the actual loss suffered by the rights holders, profits of the infringer dueto infringement received, reasonable multiple of the license fee and statutorycompensation. In many cases they determine the amount of compensation inthe way of negotiation by the parties in practice.Should point of view, trade secrets infringement damages should use thecompensatory principle. The amount of compensation shall be equal to thedirect loss and indirect loss. If the rights holders actual loss or the infringer'sinfringement profit can be ascertained, it should not use other methods ofcompensation.Cases of infringement of commercial secrets Judgment DocumentsThis paper used264cases of infringement of commercial secrets JudgmentDocuments published by Peking law information for the sample.The statistical analysis include compensation for the contents of128JudgmentDocuments. I found there are two aspects in the trial of such cases: one of theissues for statutory compensation applicable proportion is too high.58.6%ofthe cases used statutory compensation, more than the sum of actual loss(10.2%), tort profit (13.2%), and The parties determined in consultation(18.0%), it presented generalization tendencies; the second question is thatStatutory compensation is not effective. Statutory compensation in theamount of compensation accounted for the amount of the claim amount of35.1%,46.6%lower than the actual loss. But on the amount of compensationis much lower than the amount determined by the actual losses and tort profitStatutory compensation reduces the pressure of the court in difficult trailas a fallback solution, but its mass application will bring a variety ofdrawbacks and is not conducive to the protection of the rights. Through75from the applicable statutory compensation case analysis, it shows that manyfactors that can be quantified as a compensation basis in such cases. Thisarticle indicates that we should restore the rights holders actual loss throughthese factors, and try to avoid using statutory compensation directly.