Trade secrets are very important to an enterprise or even a country. The protection of trade secrets is related to the rise and fall of an enterprise. Trade secrets are the rights holder’s personal and financial rights. Information obtained from the investment of goods and materials. For rights holders, protecting their trade secrets can extend its use time and value life, gain and maintain a competitive advantage in the cruel market competition, and bring benefits to them. More benefits; for a country, only by owning and protecting its own business secrets and establishing a sound protection system for business secrets can it inject new impetus into economic development, continuously promote the development of its own economy, and thereby gain international recognition. To remain invincible in the competition.
In addition to regulating the legal protection of trade secrets mainly through the domestic laws of various countries, international protection of trade secrets is also very necessary. . In international organizations and relevant international conventions, the definition of trade secrets is often linked to intellectual property rights. The main ones are the Paris Convention for the Protection of Industrial Property (referred to as the "Paris Convention") signed in 1967; it was established in 1970 and The World Intellectual Property Organization (WIPO), which became an affiliated agency of the United Nations in 1974; and the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS Agreement) of the World Trade Organization (WTO) both treat trade secrets as undisclosed information. Included in the scope of intellectual property protection. Among them, the TRIPS Agreement and the Model Provisions on Protection against Unfair Competition formulated by WIPO in 1996 have become the main basis for resolving trade secret infringement cases on an international scale.
1. my country’s legal system related to the protection of trade secrets
( 1) my country’s current legal structure in the field of protection of trade secrets
1. Protection of trade secrets under the Anti-Unfair Competition Law
my country's "Anti-Unfair Competition Law" defines trade secrets as follows: Trade secrets are those that are not known to the public, can bring benefits to the right holder, are practical and have been approved by the right holder. Technical information and business information that are kept confidential. "Based on this, it can be considered that our country's laws have the following provisions on the characteristics of trade secrets: (1) This information is notInformation that is generally known to people in the field (confidentiality and novelty); (2) has potential or actual commercial value (practicability and value); (3) the right holder has taken necessary confidentiality measures (management). It can be said that this is not much different from the international definition. At the same time, Paragraph 1 of Article 10 of the Law stipulates four acts of infringement of trade secrets, namely: first, obtaining the right holder’s trade secrets by theft, inducement, coercion or other unfair means; second, disclosing or using or allow others to use the business secrets obtained by means of the preceding paragraph; thirdly, violate the agreement or violate the obligee's requirements for keeping business secrets by disclosing, using or allowing others to use the business secrets in his possession; fourthly, the third party knowingly or should Anyone who is aware of the illegal acts listed in the preceding paragraph and obtains, uses or discloses the business secrets of others shall be deemed to have infringed the business secrets. This generalization is relatively scientific and reasonable, and is basically in line with international conventions and international practices. This law is currently the main legal basis for the protection of trade secrets in my country.
2. Protection of trade secrets by civil and commercial law and civil procedure law
In addition to the "anti-unfairness" In addition to the Competition Law, my country's General Principles of Civil Law, Contract Law, Company Law and other laws also provide for the protection of trade secrets.
Article 118 of my country's "General Principles of Civil Law" stipulates: The copyrights, patent rights, trademark rights, discovery rights, invention rights and other scientific and technological achievement rights of citizens and legal persons are subject to If there is any infringement such as plagiarism, tampering, counterfeiting, etc., you have the right to demand that the infringement be stopped, the impact eliminated, and the loss compensated. "According to this understanding, trade secrets can be included in the category of other scientific and technological achievement rights." This lays a legal foundation for the protection of trade secrets. The "Civil Procedure Law" uses the legal term "trade secret" for the first time. Article 66 of the law stipulates: For cases involving state secrets and commercial secrets, if the parties apply for a non-public trial, the trial may not be public." This is a commercial The protection of secrets sets up a line of defense in procedures, taking the protection of trade secrets a step further.
Many companies, enterprises and institutions, in order to better protect their business secrets, often write confidentiality clauses into the contract when signing the contract, such as "Contract" Article 43 of the Law stipulates: Business secrets learned by the parties in the process of entering into the contract shall not be disclosed or used improperly regardless of whether the contract is established. If the trade secret is leaked or improperly used and causes losses to the other party, the party shall be liable for damages. "This has a binding effect on the obligors among the parties to the contract, and especially provides a legal basis for the protection of the rights and interests of obligees. In addition, Article 109 (5) of the new "Company Law" stipulates that directors and senior managers shall not arbitrarily Operate or operate for others a similar enterprise to the company in which he works. At the same time, item (7) of this article also stipulates that directors, senior managersManagers are not allowed to disclose company secrets without authorization.
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