Research On The Application Of Interim Injunction To Trade Secret Protection

As trade secret have the character of "Once lost,perpetual loss".Therefore,the most important to protect trade secret is retain the trade secret.The temporary injunction can protect trade secret better than damages after the event.In china,the revised civil procedural law introduces the system of action preservation measures in2012.From the content of the measures,it should belong to the category of temporary injunction.It is called action preservation only in china.This provides the legal basis for the application of temporary injunction in the protection of trade secret.But the the regulation in the civil procedural law is lack of operability,and there is no specific provision of the application condition and review standard of the court of the the provisional injunction in the law,so it is very easy to cause confusion in juridical practice.Moreover,the relief provisions to the applicant in the legal procedure are very unreasonable,and it doesn’t conform to the principle of due process.With the increasing awareness of trade secret protection in corporations,the cases about applying for the provisional injunction relief will become more and more.Therefore,the temporary injunction system of trade secret should be perfected as soon as possible,and its applicable conditions,examination standards and application procedures should be carefully stipulated.In view of this,the writer thinks that it is necessary to discuss the system of provisional injunction in trade secret protection.In addition to the introduction,the text is divided into four parts:The first part is the situation analysis of the application of temporary injunction in the protection of trade secret.First,it analyzes the unique and important significance of the temporary injunction system in the protection of trade secret.Through introducing two domestic cases about temporary restraining order and injunction in the prosecution respectively,this part emphaseses on analysing the specific situations and some problems in juridical practice,which leads to the discussion on the system of provisional injunction in trade secret protection.The second part is about the principles and conditions for the application of temporary injunctions in the protection of trade secret.The application of temporary injunctions in trade secret cases should follow the following three principles,that is the principle of prudence,the principle of benefit counterbalance and the principle of guarantee.Delving the application conditions of temporary injunctions in theprotection of trade secret in the United States,Britain and Japan.In summary,there are the following points:(1)The applicant has the possibility of winning a lawsuit;(2)Without an injunction,the applicant will suffer irreparable damage;(3)The interests of the applicant are more worthy of protection than the interests of the respondent,and the ban must not damage the public interest;(4)The applicant must provided a valid guarantee.The enlightenment to our country is that it should be in the legislation to specify the applicable conditions for the temporary injunctions of trade secrets.The third part is about the difficult point of application of temporary injunction in the protection of trade secret.The possibility of winning a victory is not equal to the inevitability of the victory.If the applicant has preliminary evidence to prove that the subject is legal,and the applicant has the possibility of infringement,then the possibility of winning the claim is proved.The main consideration for irreparable damage should be the loss of the trade secrets of the right holder,and other irreparable damage.In addition,when applying the pre-indictment ban,the requirement for the applicant to win the lawsuit is lower,and the applicant has a larger chance of winning the lawsuit,which should be mainly used as the censorship standard for issuing the injunction.In addition,when the pre-indictment ban is applied,the requirements for the applicant’s possibility of success are lower,and the applicant’s greater chance of success should be mainly used as the standard for reviewing the ban on prosecution.On the range of application,the court should be on the scope of the application of the applicant and balance every part’s benefit with a final range of injunction and the provisional injunction of the trade secret should not have the geographic restrictions.The fourth part is about the application program of temporary injunction in the protection of trade secret.The procedure of the case of commercial secret temporary injunction is introduced,then made some procedural improvements.Hearings should be held for temporary injunctions issued in non-emergency situations.Improve the reconsideration process,realize its value of efficiency,legitimate value of procedures and the value of rights and benefits,without giving the parties the right to appeal.About the applicable period,a relatively short period of temporary restraining order should be explicit,and it can not be changed to be the junction in the prosecution automatically until the final judgement.Finally,the content and the format of the verdict should also be regulated to make it more serious.In regard to the delivery of the verdict,it should be given to the respondent face to face and the result ofnonperformance should also be told face to face,which will make the verdict more deterrent.