| The rise of the knowledge economy has made trade secrets an important asset.Because of its huge economic value,the protection of trade secrets has become a major concern of the international community.Among the many factors that may pose a threat to trade secrets,the biggest danger comes from the infringement of enterprise trade secrets by in-service or resigned personnel in the employment relationship(labor relationship in a broad sense).Some scholars have conducted statistics on the judgments of some of the public courts in my country on trade secret infringement cases,and found that the leakage of corporate trade secrets from employees is the main reason for trade secret infringement disputes,accounting for 74.39% of trade secret infringement cases,which can be seen by employees.The risk of leakings is very high.In the case of infringement of trade secrets by former employees,damages and injunctive relief are the two most important systems.Since trade secrets are a fragile property right,their economic value stems from the secrecy of relevant information.Once the secrets are leaked or disclosed,the trade secret will be eliminated and the right holder will lose the property forever.Therefore,injunctive relief is even more important in such trade secret infringement cases.At present,since its establishment in 1868,the U.S.trade secret injunction and relief system has undergone a long period of judicial and legislative practice,and has realized the development and evolution from case law to written regulations.The relevant rules for the application of injunctions tend to be improved and a sound system has been formed.My country’s trade secret legislation has not yet provided for direct injunctive relief measures,but only the civil liability for “stopping infringement” and “eliminating danger” in the Chinese Civil Code.The Chinese Civil Procedural Law generally stipulates the relevant content of preservation before and during the litigation.Although Article 21 of the AntiUnfair Competition Law stipulates the relief method of "ordering to stop illegal acts" related to trade secret,the subject of "stopping infringement" is the supervision and inspection department,which is an administrative punishment in nature.It is a civil remedy.In judicial practice,my country has just begun to explore the application of injunctive relief in the field of trade secret This article starts from the final injunction which has the significance of deciding disputes in the injunction relief,compares the responsibility content,proof rules and related considerations of the final injunction system in the United States and China,and proposes constructive suggestions under my country’s existing responsibility system.This article is divided into five parts:The first part analyzes the definitions of trade secret and employee and clarifies the logic of its property rights from the perspective of the three constituent elements of trade secret,and then limits the context of the subsequent discussion to the context of trade secret infringement by departing employees.The second part analyzes the position of the final injunction in the relief system in the context of infringement,compares the functions of monetary compensation and injunction relief,and makes a preliminary distinction between the two important ways of existence of the final injunction.The third part analyzes the content of liability and the rules of proof against the final injunction of the actual infringement.In terms of the rules of proof,The content of the system of China and the United States is analyzed in three aspects: "composition of trade secret","infringement",and appropriateness of liability content".In the fourth part,the final injunction against threats of infringement is analyzed on the basis of the previous article,its liability content and the rules of proof.In terms of the content of liability,it focuses on the analysis of the principle of inevitable disclosure in the United States and my country’s responsibility for eliminating dangers;in terms of proof rules,it analyzes the appropriateness of the content of the final injunction around "threat of infringement" and "appropriateness of the final injunction." This practice can be used for reference to our country.The fifth part aims at the contents of the Chinese and American laws under the two different infringement methods analyzed in the third and fourth parts,and further proposes normative suggestions for the improvement of the Chinese law in terms of liability content and proof rules. |
