On Category Of Trade Secret And Judging Of Unfair Competition Cases

Proving and judging the trade secret misappropriation cases have been always adifficult task in Chinese legal practice. It is, on the one hand, caused by theinsufficiency legal system regarding the protection of trade secret, on the other hand,by lacking of efficient and maneuverable rules on proving and judging of such casesby the parties and the judicial authorities respectively.Moreover, the different treatments corresponding to different categories of trade secret,i.e. the technical secret and business secret, has occurred in legal practice, however,without having been recognized by laws and regulations. And it is not mentioned bythe legislators, practitioners and scholars that whether there should be an arrangementon rendering different treatments to the abovementioned two categories of trade secretfrom the perspectives of legislature, practice and academic analysis respectively.Based on the above issues, the author of this master’s thesis (“Thesis”) hassummarized problems in the current legal system by analyzing judgments to relevantcases, laws and regulations in force, and then compared the legal system and judicialpractice of China to the United States of America (“U.S.”) and Japan. It have beendiscovered that, though there are certain similarities among abovementioned countries, the U.S. and Japanese law may render more flexibility and detailed treatment onproving and judging of unfair competition in relation with trade secret.This Thesis consists of three chapters. The Chapter I are the summary of theclassification of trade secret and elements of act of unfair competition behaviors ofChina and the comparison to U.S. and Japan legal system and practice in order toestablishing the prerequisite to the further adoption of their experience in legalpractice by proving the similarity of legal system and practice among China, U.S. andJapan.In Chapter II and III, the author of this Thesis discussed issues including theabstractness of legislature, ossified application of rules and differences between rulesand practice of cases regarding misappropriation of trade secret. The author has mademore particular classification to different trade secrets by analyzing the foreign caselaw and asserted that the “access and similarity” rule shall not be the sole anddominant rule on deciding the trade secret misappropriation case. Such case shall bedecided based on the comprehensive consideration among facts, circumstantialevidences and laws of experience and the category of trade secret may bringsignificant impact on such decision.The Chapter IV focused on current situation of legislation of China. The author of thisDissertation analyzed the cases regarding non-competition disputes and discoveredthat the relevant rules of China is lack of flexibility. Thereafter, the author comparedthe legal practice of U.S. and Japan on preferential treatment on weighing of differentinterests, considerations in deciding the reasonableness of non-competition agreement,etc. It is raised by this Dissertation that China shall increase the attention to theposition of employee and category of trade secret accessed by the employee. Finally,this Dissertation contributed several advices on improving the legislature and judicialpractice based on foreign law.