The Study Of Legal Issues On The Third Party Innocent Discovery Trade Secret

In the domestic first case of the third parties innocent discovery of trade secrets,the court supported the defendant about the third parties in good faith for the first time.The court found that the one of appellant belongs to the third parties in good faith,the act doesn't constitute trade secret infringement,after the right holder present evidence,the third parties is responsible for keeping the client list,and the obligation of confidentiality.The protection of trade secrets is usually based on confidentiality obligation which resulted from confidentiality agreement or confidential relationship.Although obligee possess trade secret,but possessed by the holder of the commercial secret,but the obligee always hard to avoid the disclosure of trade secret to someone else actively or passively,and the someone else can not use or disclose the trade secret based on confidentiality obligation.So if someone else disclose the trade secret actively or wrongly to any third party,should the third party use the secret without knowing and confidentiality obligation? If the third party use it,what legal responsibility should him take charge of? At present,China's "anti-unfair competition law" article 9 for malicious third party have specific provision,but the third person innocent discovery of secret has no clear legal provisions.There appears inconsistent regulations in the relevant judicial interpretations and local rules for this problem.The first chapter mainly put forward problems.first,by analyzing the existing rules of third parties in good faith in "anti-unfair competition law"and "technology contract disputes and judicial interpretation" and "shenzhen enterprise technology secret protection ordinance”,compares the two kinds of modes of different rules.At the same time,according to the existing regulations,put forward the problems existing in the regulations,mainly including three problems :(1)the different situations of the malicious third party and the third party in good faith are not distinguished;(2)the specific rules and standards of the third party's subjective goodwill are not clearly defined;(3)it is not stipulated whether the third parties can continue to use the secrets obtained in good faith.The second chapter mainly analyzes the goodwill of the third party.This chapter firstly analyzes the necessity of recognizing good faith,which is helpful to clarify interests of the right holders and obligations of the third parties.The goodwill of third parties firstly refers to a third parties not know and have no reason to know defaults,the illegal disclosure as well as the accident or negligence of disclosures,also don't know the the real right ownership and secrecy of the information.Second,about the allocation of burden of proof,the experience in the judicial practice is mainly onus probandi inversion,due to the subjective good faith is a state of negative fact,by the right holder to prove that the third parties is not in good faith could be more reasonable.The third chapter mainly analyzes the rights and interests boundary of the third parties after obtaining the business secret in good faith,that is,whether the third parties can continue to use the secret.First of all,focus on the characteristics of trade secret and the subjective goodwill of the third party.Secondly,two existing views on the boundary of the third parties rights and interests are discriminated and analyzed,and the existing problems are pointed out.Finally,the boundary of the rights and interests of bona fide third parties to the commercial secret is clarified.That is,before receiving the notice from the right holder,there is no legal liability for the use or disclosure of the act,and at the same time,the benefits obtained thereby can be retained.But after receiving the notice from the right holder,the secret shall not beused again.The fourth chapter mainly analyzes the third parties in good faith continue to use after notice in the special circumstances,after third parties in good faith to pay reasonable consideration and substantive change state,from the point of view of fair principle and benefit balance principle,we should protect the third parties' realistic interests.If the third party is allowed to continue to use the trade secret under certain circumstances,the subsequent use of the third party shall also be restricted and regulated.First,the third party shall pay the subsequent licensing fee to the right holder;Second,the third party's subsequent use behavior is limited to the original scope;Third,the third party shall undertake the same confidentiality obligation to the right holder.The fifth chapter is mainly aimed at the problems and the proposed solutions.First,relevant provisions on bona fide third parties are added to the anti-unfair competition law to distinguish the different legal liabilities of malicious third parties and bona fide third parties.Second,revise the technology contract disputes and judicial interpretation,stipulate the third parties in good faith cannot obtain the right of secrets,only under certain conditions can be allowed to a third parties in good faith continues to use the business secrets.