| With the development of the market economy,commercial subject gradually participates in high-tech and national defense construction areas,creating more and more trade secrets.Once these trade secrets leaks,it will seriously affects our country’s economic interests and even national security.In general,trade secrets and state secrets are different areas of the two concepts,the two are fundamentally different concepts and nature.The scope of commercial secret is limited to technical and management information related to the production,representing the individual will.State secrets covers national politics,military affairs,diplomacy,national economy and social development and other major areas,representing the overall interests of the nation.In essence,both difference is very obvious,one belongs to the scope of private rights,one belongs to the protection of the public rights.The existence of the state power is to better serve the citizens’ rights.In order to better safeguard citizens’ rights and realize the citizens’ interests,citizens need assignment part from their rights for facilitating state management and protection.When the commercial secrets related to national interests and security,it needs to be further identified as state secrets and through the national secrecy administrative department to protect the rights of citizens and the entire national security and interests.So commercial secrets identified as state secrets is the intervention of public power for private rights.To this,China’s relevant laws and regulations provide a source object and confirmation process,but there are still some problems in theconcrete implementation process.The first chapter “The necessity of trade secrets identified as state secrets ”.Analysis shows that trade secrets has property attribute and state secrets has the attributes of executive power,then it compare the differences between trade secrets and state secrets.In the end,it analyze the necessity of trade secrets identified as state secrets from the overlapping object scope and the serious situation of protecting state secrets.The second chapter “The legitimacy of trade secret identified as state secrets ”.It discuss the different theories of trade secret identified as state secrets,and the essence of the identified behavior is state’s public right imposing restriction on citizen’s private right.and social contract theory,the equilibrium theory about values of law and the integration of private law into public law provide the theoretical basis for the restriction.The third chapter “The practical problem of trade secret identified as state secrets ”.The identified behavior creates the secret information’s ownership problem,so considering the different degree of the restrictions,it put forward two solution(buying out theory and restricting proprietorship theory)to solve the problem.It also compare the advantages between Voluntary reporting and positive review,and get the results that they are co-existence.There’s no certain laws and regulations for compensation caused by identified behavior,but special sacrifice theory provides a theoretical basis.It also points out the current situation and improvement direction of compensation mechanism.When the identified behavior is disputed,China’s secrecy law does not specify remedies.So it analyzes the applicability of administrative reconsideration and administrative litigation and the priority of administrative reconsideration in practice.Furthermore,it analyzes the problem of the double protection which protects by Secrecy Laws and Trade Secrets Law when information is divulged during the period of confidentiality. |
