On Perfecting System Of Business Secret Protecting In China

In the first chapter, the issue which will be resolved first is concerned with the intension and extension of business secret, leading the readers gain a general idea on business secret, for fixing an observing point to exam the legal system of Chinese business secret law. In this part, through the comparisons among different countries and areas on the definition of business secret, the author establishes that the content of business secret extending gradually, therefore, it is a hard work to definite the business secret in one abstract statement is a. In China, business secret is abstracted as the technology information or operating information which is practical, disclosed, can bring commercial benefit to its owner and is kept secret by the owner. Besides, business secret is specified as design, program, product prescription, artificial technology, administration skill, customer list, information of material source, producing and sale strategy, the estimate and content of document for biding and so on as the supplement to the abstract definition.The second, author analyses the two characters of confidence and commercial value, and explains the reason why administration or practice can not be taken as the characters of business secret law.The third, considering the characters of business secret, author analyses the legal nature of business secret, explaining why cannot property right theory, personal right theory, contract theory or trust relationship theory fulfill the requirement of the character of business secret, otherwise why the intellectual property theory can, thus illustrates the probity to divide business secret into intellectual property.At last, author analyses the benefits which should be balanced in the protection on business secret. In author's view, the benefit of private and society should be both taken into account, and the protection on business secret should be subjected to market competition statue.In the second chapter, author reviews the history from the issue regarding luring salve in Rome Times, to Trips in modern times to find position for Chinese business secret law. In the second part of this chapter, author exams Chinese business secret law, and finds even China has found business secret law system primarily but in practices, the issues regarding blaming, burden of proof, defending and protecting all need to resolve.In the third chapter, focusing the issues in conference which are waiting for perfection, author illustrates them separately pointing out the resolution.Firstly, the blaming principle should be regulated clearly. Because there are tens of infringing activities, and most of them are secretly, so that they cannot be regulated in the enforceable documents for all. Therefore, on the principle of blaming for fault, the owner seldom establishes the error of infringer. As conclusion, we can use principle of blaming for non fault as supplement in litigations.Secondly, the burden of proof should be regulated clearly. As business secret is confidential information but not exclusive information, the law permits separated person own the same secret separately at the same time. Therefore, the traditional principle on burden of proof will brings the owner disadvantage. As conclusion, we can reverse the burden of proof in certain time.Thirdly, the defense should be increased. For parties predicting the result of their action, generally, there will be some defense thereby regulated: the allegation business secret does not exist, the fault of the owner, or gain business secret by legal means.Finally,the measurement of remedy should be regulated clearly. Compensation is the main measurement of property liability. In practice, there are two method of calculating the loss of owner, one is the amount of owner's loss, and the other one is the profit gained by infringer through infringement. But it is hard to distinguish the loss caused by infringement and the one caused by commerce risk in practice meanwhile, to compensate owner's loss with the profit gain by infringer through infringement is usually insufficient. As the conclusion, we can use find to solve this issue. As the non property liabilities, author introduce the restrain order system in America, the order system focuses on stopping infringement in time. And then, author discusses the non property liabilities in Chinese law system. In author's view, China can use prior enforcement order or add the restrain order system.