Research On Legislation Of Trade Secrets Protection From The Angle Of Employment

Associated with the talents shortage brought about by the rapid economicdevelopment, the status quo of employees’ frequently job-hopping emerged due toemployees’ attempts to achieve more economic interest and higher career path, thechallenges in Trade Secrets management turned bigger and bigger. Employerssuffered economic losses frequently for employees’ intentional or unintentionalleaking or leveraging of employer’s trade secrets and poaching of clients.Employment contradiction increased prominently in trade secrets management.However, enterprises have met the bottleneck and resistance when they tried toprotect their trade secrets and safeguard their legal rights under the trade secrets legalprotection mechanism. The purpose of this article is to research how to dredge thebottleneck of trade secrets legal protection and remove the resistance whensafeguarding the trade secrets rights.This article is divided into three chapters.The first chapter is "Overview of Trade Secret Protection and Non-competition ".The first section of this chapter,"Overview of Trade Secrets", analyzes andexpounded the concepts related to trade secrets protection system, theory of law andviews that the author agrees with: The development of trade secrets protection systemis changing associated with the development of economy; The definition of tradesecrets in Chinese law takes the legislative forms of generalizing combined with enumeration; Three constitutive requirements of trade secrets is the secrecy, the valuefeature and under protection, secrecy requirement basically reveals the corecharacteristic of the trade secrets; It’s not infringement to get others’ trade secretsaccording to the principle of reverse engineering; According to the definition of theTRIPS agreement of WTO, the scope of trade secrets can be defined as "undisclosedinformation"; The essence of Trade Secrets is some kind of intangible property right,but it’s more efficient and rationally to protect it with reference to the protection ofintellectual property rights for the reason that it has some typical characteristics oftraditional intellectual property rights. The2ndsection of this chapter,"Overview ofNon-competition", analyzed and expounded the concept and framework of thenon-competition system which is an important way of trade secrets protection, and theconcepts, characters and application conditions of non-competition agreement, systemof injunction, etc. The Non-competition system hereof refers to the system thatspecified employees are forbidden to being engaged in a competitive relationshipduring the employment or after according the law or any agreement. Non-competitionagreement has become a domestic practice for its easy operation and less burden ofproof. The System of Injunction in America has manifested its unique advantages oftimeliness and effective in relief of infringement on trade secrets. Based on theprinciple of trust and loyalty in employment relationship, in the circumstance whenNon-competition agreement is absent and employee would inevitably leverage or leakthe trade secrets of the employer if the employee took the new job, the InevitableDisclosure Principle shall be applied to due to the reason that it’s derived from theright of claim for eliminating the danger.The second chapter is "The Legislative Status Quo Analysis of Trade SecretsProtection related to Employment ". In section1"the Legislation of Trade SecretsProtection of Anti-unfair Competition Law", the current legislation of Anti-unfairCompetition Law has been enumerated and analyzed. Through the analysis ofcharacteristics of Chinese legislation of Anti-unfair Competition Law, the author putsforward some problems which exists in present legislation: The subject scope adjustedby Anti-unfair Competition Law are limited to "Business Owner", which is too narrow; Substantive provisions are too principled and rough and lack of operability;Lack of relevant procedural rules. In section2"the Legislative Status Quo of ChineseNon-competition", both the statutory non-competition legislation and the contractualnon-competition legislation were analyzed and expounded respectively. Problem onstatutory non-competition legislation are: The subject scope adjusted by statutorynon-competition legislation is too narrow, no unified standard exists among differenttypes of enterprises; Lack of unity and operability provisions of civil liability rules.Problems on contractual non-competition legislation are: the effectiveness ofnon-competition agreement affected by the termination style of labor contract is notunified in different provinces; the scope of economic compensation standards fornon-competition is not unified in different provinces, less of operability due to the toowide ranges. Section3"Incomplete of Legislation Framework of Existing TradeSecrets Protection" put forward two missing of law system: Lack of rights of claimingfor eliminating the danger of traditional civil law, and lack of timely and effectiverelief measures for instant infringement of trade secrets.The third chapter is "Perfection of Legislation of Trade Secrets Protection ". Inthis chapter, the author puts forward the proposal on perfecting trade secretsprotection legislation:1. Enlarge the adjustment scope of trade secrets protectionlegislation;2. Enlarge the adjustment of the object range of trade secrets protectionlegislation;3. Perfect the system of statutory non-competition, introducing inevitabledisclosure principle into the statutory non-competition system, and enlarge theapplicable scope of statutory non-competition system; unify the senior employees’statutory non-competition rules concerning to respective enterprise law; introduce therights of claiming of eliminating danger (Inevitable Disclosure Principle);4. Perfectthe legislation of contractual non-competition system;5. Introducing "the System ofInjunction";6. Formulate unified Trade Secrets Protection Law.