Approach Of Legal Interpretation Of The Applicable Law Of Infringement Of Trade Secrets In China

With the development of science and the increasing foreign exchanges, trade secrets are faced with risk of foreign infringement. If trade secrets are infringed, to determine the applicable law, we should find the proper conflict rule. Law of the People’s Republic of China on Choice of Law for Foreign-related Civil Relationship provide two rules for us, the first one is Article 50, which determines the applicable law of infringement of intellectual property, the second one is Article 44, which determines the applicable law of tort. This thesis adopts the approach of legal interpretation to confirm whether Article 50 or Article 44 is the appropriate rule.Firstly, through analysis of nature and characteristics of trade secrets, it can be found that trade secrets differs from patent, copyright and trademark in four aspects, including the times of protections by legislation, the ways of protections by legislation, the public summons, and the limit of time and area.Secondly, this thesis makes use of the approach of legal interpretation and case analysis, to individually assess Article 50 and Article 44 about the effects resulted from the two rules applicable to tor for trade secrets. Article 50 contains two kinds of attributions, the laws at the locality where protection is claimed is more important than the laws at the locality of the court chosen by agreement. Article 44 contains three kinds of attributions, party autonomy, lex persionalis, and lex loci delicti, and the last one is the most important, lex loci delicti can be divided into two parts, lex loci delicti commissi and the laws at the locality where the act of tort results, between which should the judge choose, and it is advisable two choose the former one.Thirdly, because of Rome II Regulation’s special use for reference, this thesis analysis it. Rome II contains general conflict rules of tort, conflict rules of unfair competition and conflict rules of infringement of intellectual property rights. By means of using the exception clause of conflict rules of unfair competition, and restrictive interpreting conflict rules of infringement of intellectual property rights, Rome II applies general conflict rules of tort to infringement of trade secrets. The legislative intent and approach of interpretation in Rome II is useful to the same problem in China.Finally, by comparing the grade of maturity and flexibility between Article 50 and Article 44 and analyzing the interrelation of both, the thesis make an conclusion that Article 44 is more suitable than Article 50. To avoid applying Article 50, the words ’intellectual property’ in the Article should be narrowly interpreted exclusive of trade secrets.