A Comparative Study On Legal System Concerning Transfer Of Technical Secrets Between America And China

With the increase of international communication in recent decades, the trend of economic globalization is gradually strengthening, the domain of international civil or commercial relationship is expanding. The rapid development of technology prompts the flow and application of technology in the world during this course of globalization. Technical secrets have become key objects in the economic activities. International technology transfer has been one of the most important legal areas. As the object of the transfer is an intangible asset, generally capturing some characteristics of intellectual property, the transfer concerns on the legal protection of technical secrets. Furthermore, the transfer activities also relate to national import or export mechanism and bring about competition law issues, reflecting some complexities. This article will discuss the legal system concerning transfer of technical secrets between America and China. It will analyze the legal protection, export mechanism of technical secrets and the impact of competition law on their transfer. As a conclusion, this article tries to give some suggestions to improve Chinese legal legislation. The article is divided into four chapters. The author makes an abstract of it as follows: Chapter One examines the meaning, the features and nature of technical secrets by comparing with the legal definition of technology and trade secrets. This part then introduces major channels for international technical secrets transfer, such as licensing, technical service and joint venture or co-venture. This part also explores the generation and development of technical secrets transfer, analyzes the internal cause of current change in this area, providing basis for the whole article. Chapter Two elaborates legal protection concerning technical secrets transfer in America and China. As knowledge increasingly becomes a key strategic resource, the legal protection on technical secrets plays an important part in national economic development. In 1994,World Trade Organization (WTO) passed Agreement on Trade Related Intellectual Property (TRIPS).The agreement specifies that trade secrets are properties, and puts them into intellectual property protection system worldwide. It is obvious that technical secrets, as one mode of trade secrets, are also properties and claim legal protection as equal as other intellectual properties. This part then makes comparison between the legislation of two countries by referring "Uniform Trade Secrets Code"of America, Contract Law, Criminal Law of China and so on. The author clarifies the difference between these legislations and come up with some opinions to help the current Chinese relative legislation. Chapter Three focuses on the detailed operation of export mechanism on technical secrets. Since the development of science and technology influences politics and economics of every country more and more intensively, the struggle for world political and economical interests has transfered from capital to technology. The creature, possession and application of technology, the quality and quantity of technology a country has held have become a crucial foundation of global competition. Thus, each country takes measures to restrict the export of technical secrets. America and China are the most important developed and developing countries. As the two countries hold different ideas about economic and political development, this part points out the differences between two legal mechanisms. Chapter Four talks about the conflicts and reconciliation between technical secrets transfer and competition law. As trade restrictive provisions in transfer contract may restrict research activities of transferees, hinder health development of technology market, these provisions have been regulated by competition law. This part makes an overview on American legislation and practice in antitrust area, and analyzes fundamental principles and some features of its antitrust law. At last, the author put forward the points as well as suggestions on improving the current Chinese law.