Thesis On Solicitation Rule Of US Trade Secret Law And China’s Inspiration From It

As one kind of trade secret tort cases, trade secret solicitation cases have arisenand begun to be more and more in China nowadays. Solicitation Rule, whichgenerates from US case law and has developed a long time, is just the legal ruleagainst solicitation. Solicitation Rule consists of a series of rules which define, ruleand prevent solicitation. These rules are: defining trade secrets, characteristic ofsolicitation, Aetna standard and non-solicitation agreements. Only employees notemployers could become the tort subject of solicitation cases, because the origin ofSolicitation Rule is to rule employees’ actions.When using Solicitation Rule, to determine whether information in case are tradesecrets should be done first. It’s meaningful to analyze whether actions in case aresolicitation only when there are trade secrets. When defining trade secrets, someinformation which satisfy trade secrets’ components may not be defined as true tradesecrets because of specific connection in specific case adopted by US courts. Inaddition, stipulated injunction in some trade secret cases may cause a result that wholetrade secret law can not be applied.Both case law and UTSA of the US define solicitation. In case law, the essentialcharacteristic of solicitation is to pursue specific object’s specific action by implyingprayer or imposition. Under UTSA, solicitation is defined as misappropriation oftrade secret. And its tort essence is summarized by UTSA.Aetna standard is no doubt the core of Solicitation Rule because of its abundantcontents and important position. Aetna standard is also an action definition rule essentially and its function in action definition is irreplaceable. It’s also thecounterpleading against tort claim from employers. Aetna standard can tellemployee’s action from solicitation so that the action is legal. Complemental rule andother elements make Aetna standard more exercisable.Non-solicitation agreements are based on Solicitation Rule and it is therepresentative of Solicitation Rule’s prevention function. The rule to decide whether anon-solicitation agreement is enforceable is the consumer contact theory. Based on thetheory, the agreement’s enforcement will be approved if the agreement does preventsolicitation in specific case, but it will normally be denied if the agreement doesrestrict employee’s legal new affiliation. Non-solicitation agreements which point atsolicitation on employees are new cases in the US. These cases are uncertain in boththeory and practice field, and whether this kind of agreement can be brought into theSolicitation Rule should be decided in the future based on consistent study.The contrast of China and the US’s trade secret solicitation cases shows a hugedisparity. Theodore, which is a case of the US, shows Aetna standard fully andcomprehensively. In a China case, which is called Wu Weiyin case, both of thefirst-instance court and the second-instance court didn’t define Wu’s action of sendingadvertisements which is easy to define based on Solicitation Rule. In another Chinacase, which is called Qian Zhiqin case, the opposite holdings of the first-instancecourt and the second-instance and so many errors in the second-instance holdingreveal the shortcomings of China courts’ trial on trade secret solicitation cases. Thecontrast fully reveals problems of dealing with trade secret solicitation cases whichrepresents trade secret tort cases in China. The fundamental problem is China’s lackof trade secret law.These problems oblige China to seek ways to solve them. To do that, all ofSolicitation Rule’s rules should be used in China’s legislation. And the problem thatthe legislation of trade secret law needs long time urges publishment of judicialinterpretation as soon as possible. In addition, legislation should pay more attentionon non-solicitation agreement because of its perspective of wildly use in future.