The Research Of Trade Secret Judicial Review System In America And The Enlightenment To Our Country

With the continued development of economy and the increasing competition in the market, the public begins to pay more attention to the problems of trade secret. Nowadays, it’s the age of the rapid development of knowledge and technique. Knowledge and technique is the core in wealth distribution. Therefore, the protection of trade secret is not only important to trade secret obliges, but also has the strategic meaning to our country’s national development and the enhancement of international status. Compared to other countries in the world, our country has got a late start in the protection of trade secret. Though, we have formed a system of trade secret which the Anti-Unfair Competition Law is the corn, the whole system is still disordered, trade secret laws are flawed, and the effect is unsatisfactory in the practice. The infringement acts of trade secret frequently happen, and the problem of trade secret protection is serious. However, America’s trade secret system is relatively perfect and the laws are complete which takes its place in the front ranks of the world, and is the example to follow for other countries. So we can learn America’s experience in the judicial review of trade secret, and improve our country’s trade secret system based on the national conditions.This paper is divided into five parts. The first part explains the background and the development of exemptions of trade secret in America’s Freedom of Information Act (FOIA);The second part states the definition and range of trade secret in FOIA in detail, which contains trade secret, and business or financial secret definition and range. Trade secret means any formula, pattern, device or compilation of scientific, technical, or commercial information which the trade secret owner has taken reasonable precautions to maintain in secrecy so that except by improper means there would be difficulty in acquiring it, and which gives said owner an opportunity to obtain an advantage over others who do not know or use it. Business or financial secret includes "Privileged" information,"Confidential" commercial information, Information "obtained from a person" and "Financial" information.The third part illustrates the standard to measure trade secret. On one hand, whether information publicity will harm government’s ability to obtain future necessary information; on the other hand, whether information publicity will seriously harm the provider’s competitive position.The forth part lists several judicial reviews of the exemptions of trade secret, such as burden of proof, Vaughn index, in camera review, detailed affidavits, segregation of disclosable portions, summary judgment standards, motives of requester. The fifth part firstly starts to introduce the development of our country’s trade secret legislation."Trade Secret" as a legal term firstly appearing in our country’s law is in the Civil Procedure which had passed in the7th National People Congress; the definition of trade secret firstly confirmed is in Anti-Unfair Competition Law which was issued on September2,1993; in the Criminal Law that was revised on March14,1997by the Eighth National People’s Congress the Fifth Meeting, criminal cases about business secret had been established. And then, several defects about trade secret legislation are listed, such as, lack of scientific guiding concept, scattered legislation, irregularity of legislative level and inconsistence of the civil ability and criminal ability. At last, the enlightenment of judicial review of trade secret in America to our country is demonstrated which includes the following aspects:firstly, accurately defined trade secret. The measures to define trade secret are different in our country’s current Anti-unfair Competition Law, department rules and regulations issued by provinces. Therefore, uniformity the definition is necessary; secondly, make clear the legal nature of trade secret, and bring trade secret into the range of intellectual property; thirdly, improve the legal remedy of trade secret infringements, such as, establishing injunctive relief system, specifically providing the compensation standard of trade secret, enhancing the operability of trade secret compensation in practice, making clear the standards of punitive damages, improving the criminal protection of trade secret; fourthly, adding elastic clause that can judge trade secret infringement acts; fifthly, strengthening the companies’awareness of trade secret protection; sixthly, improving the judicial protection.