美国法论文终结版4.docx

1、美国法论文终结版4 NANCHANG UNIVERSITY The trade secret and its protection in Chinese law Instructor Nicolai Nielsen Team Sheromembers Jie Gao 5301109005QingLiu 7102209018 Lijuan Xie 5301109039Lu Zhang 5301109049 Yuting Zhong 5301109050 School Law School of Nanchang University Class 091 Date November 30, 201

2、1contents Abstract 2 Overview of Trade Secrets 2 a) The concept of trade secret 2 b) The characteristics of a trade secret 2 c) Historical development 4 The specific form of violation of trade secrets 5 a) By theft, inducement, coercion or other improper means to acquire trade secrets 5 b) Disclosur

3、e, use, or allow others to acquire the trade secrets with improper means 5 c) Breach of contract or non-compete violation of trade secrets 6 d) Other means. 6 What is the remedy about the violation of trade secret? 6 a) The violation of trade secrets is supposed to assume civil liability 7 b) The vi

4、olation of trade secrets is supposed to assume administrative responsibilities 8 c) The violation of trade secrets is supposed to assume criminal responsibilities 9 The deficiencies and improvement of the provisions of Chinese law on trade secret 11 a) Legal norms are too scattered and lack operabil

5、ity 11 b) Elements of trade secrets are too strict. 12 c) Existing law still have blank in some respects 12 d) It lacks clear standards of civil liability 12 e) Lacking of procedural requirements 12 f) It is not enough to investigate and combat violations of trade secrets 13 Conclusion 15 Bibliograp

6、hy 17. Abstract Trade secret is playing a more and more important role in todays international commerce, and considered as a major trade partner in the international trade. This article introduces the concept and characteristics of trade secrets. It also analyzes the specific form of violation of tr

7、ade secrets and the remedy about the violation of trade secrets; exemplifies modes of trade secrets protection; expounds chinas status in this respect. At the end of the article it provides some suggestions to perfect this legal system.Keyword: trade secret; infringement; illegal protection; improve

8、ment of legal system. Overview of Trade Secretsa) The concept of trade secret Trade secret is an intangible business property, Trade secret refers to the technical and business information which is not known to the public, and can bring economic benefits for its holder and the subject of reasonable

9、efforts to maintain its secrecy. b) The characteristics of a trade secret Trade secrets have several characteristics: novelty, practical, valuable and confidential.1. Novelty of trade secret refers to not generally known to the public. Trade secrets legal system does not require trade secret as nove

10、lty as patent, that is, does not require trade secrets to be unique. American business secret judicial practice judge whether a so-called commercial secret possesses novelty mainly on two factors: first, the level of a proposed trade secrets outside the holder in the industry; Second, the degree of

11、awareness of professionals in the industry. As long as this use degree and know degree is not common, it can be considered to constitute the novelty of the commercial secret.2. Usefulness of trade secrets is that it can bring competitive advantage and economic benefits to holders. Whether is competi

12、tion advantage or economic interests, both in reality and potential to come? Trade secrets must be useful in subjectively but not in the contrary. In addition, trade secrets are not said about the principles and abstract concepts. It should have useful specific programs or information. 3. Trade secr

13、ets give the benefit of rights to its holders; such benefits include not only the economic interests of reality, but also potential benefits. The valueoftrade secrets is the most significantdifference with other secrets. This is why we should give strict protection to the trade secret. National legi

14、slation to protect trade secrets is intended to maintain the owners economic interests and social and economic order. 4. The confidentiality of trade secrets is the trade secret holder will be some information as subjective commercial secrets, and take the confidentiality of the objective measures t

15、o management. This is the core elements Trade secrets are not required the confidentiality of the absolutely, totally, because in the use and management of the commercial secret, a certain threshold in public is inevitable. Therefore, the trade secret confidentiality is relative,c) Historical develo

16、pmentEarly in the 1960 s, International Chamber of Commerce (ICC)has taken the lead the trade secret as intellectual property; WIPO Convention also implies the establishment of trade secrets included the intellectual property rights. In the 1990, the intellectual property agreement which specified t

17、he not open information problem to clarify its belong to the scope of intellectual property. In legislative system, common law countries generally regarded it as intellectual property, and Civil law countries have long-term according to contract law or tort law theory to protect trade secrets intell

18、ectual property agreement which specified the not open information problem. In 1993, Chinas Anti-Unfair Competition Law article 10 provides that: The so-called trade secrets are not known to the public, can bring economic benefits to the right, has the right to take practical and approved the techni

19、cal information security measures and management information .” .The specific form of violation of trade secrets According tothe general practice at abroad, trade secrets violations can be summarized into four types: a) By theft, inducement, coercion or other improper means to acquire trade secrets

20、Under normal circumstances, the theft of trade secrets, including internal staff theft, external staff theft, collusiontheft and so on. Theinducementsto obtaintrade secrets usuallyrefer to the situation when people providethe masters of trade secrets with theproperty orother benefits in order to get

21、 trade secrets. The coercion of trade secretsrefers to the act to take the threat and coercion, so that others will be mandatory in the case of providing trade secrets. Other improper means to acquire trade secrets refer to the above acts other than illegal means. For example, through commercial neg

22、otiation, cooperation, research , development, or spy on other peoples business secrets and so on. b) Disclosure, use, or allow others to acquire the trade secrets with improper means The so-called disclosure refers to the trade secret owner of the right to disclose to third parties or to certain ot

23、her people do not open which making the secret lose value. Using or allowing others to use refer to the specific circumstances that trade secrets is being used illegally.c) Breach of contract or non-compete violation of trade secrets This situation is mainly those who master others legitimate busine

24、ss secrets, including the workers of right holders and who have business relationships with the right units and individuals. Infringer breach of agreement or regulations, or disclosed to the third parties, or making use of trade secret rights without permission, or allows others to use the commercia

25、l secrets of right holders.d) Other means.The thirdpersonwhoknows the infringingactsof violation of tradesecrets, but still obtain trade secrets or make trade secrets to be used or disclosed. .What is the remedy about the violation of trade secret? In order to enhance protection of trade secrets, Ch

26、ina has basically formed a set of laws for violations of trade secrets which results in some legal consequences to make sure that the party should assume the type of the responsibility such as ，,，and so on.a) The violation of trade secrets is supposed to assume civil liabilityThere are some provisio

27、ns for civil liability in the contract law of the Peoples Republic of china and a number of administrative rules. Article 20 of the Anti-Unfair Competition Law also made provisions in principle. The civil commitment to the violation of trade secrets and civil cases generally have adopted the fault p

28、rinciple, named the performance of subjective intent and negligence.“No fault” behavior does not assume civil liability; civil commitment has the following main methods:1. Breach of contracts. Both parties should assume liability according to the confidentiality agreement signed by them before. Alth

29、ough the one who breached the contract didnt cause a loss to a creditor, he must pay penal sum if the contract provided for related matters. A creditor who caused the loss of the contract has been scheduled for the certain amount of compensation, which should be in accordance with the contract. But

30、if there is no agreement, it could be based on actual damages, and the amount of compensation shall not exceed the envisaged when the two sides signed a contract loss.2. Tort liability. Violation of trade secrets causes harm to people, the amount of compensation should be measured by actual loss .On

31、 the other hand, it can also be measured by their earned profits during their violation when the creditors actual loss cant be calculate accurately. Besides, chinas Anti-Unfair Competition Law has provisions, which says that the infringer should undertake the reasonable fee spent by the investigation of misconduct against their legitimate rights and interests. So the creditor should not forget to retain the evidence of this part while their legitimate rights suffered from violation.3. The different circumstances of the case can also be a