The Remedy System Of Trade Secret Infringement In China

As an intangible intellectual property right,trade secret gives enterprise more comparative advantages on its rivals.With the development of informatization,the maintenance cost of trade secret becomes more and more complicated and costs much more.With constant revise and supplement of the trade secret related bills,European Union,United States and Japan defend the owners of trade secret and their economic benefits,China strengthens the legal protection of trade secret in recent years too.There is no separate legislation on trade secret in China as of yet,Anti-unfair competition Law provides major legal basis for the remedy of trade secret infringement.A lot of problems come forth in judicial practice,including the limitation of non-compete agreement,fairly high constitutive requirements of trade secret,low compensation for damages and lack of relief in advance.The amendments of trade secret related articles in “Anti-Unfair Competition Law(2017 Revision)” improve of remedy system of trade secret infringement,including the constitutive requirements of trade secret,the act of tort to trade secret,compensation,and third party liability.But the amendment does not introduce injunction to impending infringement,and no clear distribution of the burden of proof.It is suggested that without sufficient legal basis and practical case guidance,if the procedural justice can not be guaranteed,we should not rashly introduce the injunction in trade secret related legislation.Based on the existing Civil Procedure Law and Tort Liability Law of PRC,we could get relevant experience through judicial practice and gather some guiding cases,gradually increase the use of injunction.In view of the concealment of trade secret infringement and the difficulty of providing evidence in lawsuit,it is suggested that the reversion of burden of proof should be applied cautiously.For malicious violation of trade secret,it is suggested to set up punitive compensation system,which could increase the cost of infringement and maintain the competition order.