Research On The Action Preservation Rules Of Trade Secret And Its Application In China

The "Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Civil Cases of Infringement of Trade Secrets" promulgated and implemented in 2020 officially incorporated "conduct preservation measures" into the judicial interpretation in the field of trade secrets for the first time.As a kind of ex ante relief,this measure aims to prevent the occurrence or continuation of improper acquisition or disclosure of trade secrets by regulating the behavior of the respondent,and at the same time,it can make up for the insufficiency of traditional ex post remedies and improve the efficiency of the applicant’s rights protection..Therefore,the clear provisions on safeguarding measures for trade secrets are of great value..The current judicial practice in China mainly examines trade secret behavior preservation cases based on "four elements",namely "whether the request has a factual and legal basis","whether irreparable damage has been caused or the judgment is difficult to enforce","whether the interests of both parties are obviously unbalanced" ”,“Whether it violates the public interest”.Although the "Four Elements" can provide the court with certain guidelines for adjudication thinking,there are still some problems in the current application rules of this measure,such as unclear substantive review standards,imperfect procedures,and insufficient legal connection.Through a horizontal comparison of other legal provisions on behavior preservation in China’s intellectual property fields,and a vertical analysis of the review standards and historical process of the U.S.trade secret prohibition system,relevant suggestions for further improving China’s trade secret behavior preservation measures are obtained: on the one hand,it is necessary to improve the entity The review standards,including the “preliminary proof” standard that clearly exists the fact of infringement,the applicant should provide evidence on the stability of the rights of the trade secrets involved,the ownership of the rights and whether there is any infringement,and the degree of proof should be able to preliminarily prove the basic facts of the case;"Remedied damage" needs to pay attention to the damage characteristics of trade secrets,clearly define it as a kind of damage that cannot be measured or made up with money,and expand the relevant provisions of the "Provisions on Several Issues Concerning the Review of Intellectual Property Disputes Act Preservation Cases Applicable to Law",highlighting the Protection and relief of trade secrets;give priority to the protection of the interests of the party affected more by the implementation of behavior preservation measures,compare the rights and interests of the applicant protected after the implementation of behavior preservation measures with the rights and interests of the respondent damaged,and comprehensively consider the priority protection of rights and interests order;refine the connotation and types of "public interests",and clarify that when it may have an adverse impact on public health and social progress,it is a violation of public interests,and the content and types of public interests are further refined through the issuance of Supreme Law Guiding Cases.On the other hand,improving the procedural system,including setting up hearing procedures,through oral arguments between the parties,so that the judge can further understand the case,which is conducive to making a correct ruling;clarifying the review and implementation period of the measure,avoiding the applicant’s abuse of rights,excessive delay,and reducing The court’s trial difficulty;clarify the form and scope of guarantee to ensure that the rights and interests of the respondent are protected;increase the relief measures after the ruling is made,set up a ruling error correction procedure,and regulate malicious applications.