Research On Special Legislation Of Trade Secrets In China

At the moment when the intellectual property awareness of the innovation subject is enhanced and the intellectual property protection is continuously strengthened.the business secret has gradually become an important form for the innovation subject to protect the innovation achievements and gain competitive advantage.With the role of innovation elements in economic and social development becoming more prominent,cases of trade secret infringement are in a blowout trend.Taking Zhejiang as an example,through the statistical analysis of more than 1,800 questionnaire survey data,we can get a preliminary understanding of the status quo of business secret protection in Zhejiang enterprises,and also confirm the dilemma and demand of corporate trade secret protection in China.According to the survey results,trade secrets have become the most important choice for enterprises in the protection of innovation achievements.It can be said that trade secrets have become the ocean of human knowledge and technology.At present,trade secret infringement is closely related to various economic activities,and has become the hardest hit area for intellectual property infringement.At the same time,in some emerging fields,with the innovation of technologies such as the Internet,big data,and artificial intelligence,the means of stealing trade secrets has become increasingly diverse.In stark contrast to the rapidly changing reality is the lag in China’s current legislation.There is no specific trade secret law in China.The relevant provisions on trade secret protection are scattered among many departmental laws to form a “decentralized” legislative protection model.Due to the lack of legislative experience and legislative techniques,the “decentralized”legislative protection model has obvious deficiencies.The systematic,orderly and coordinated nature of various laws is facing severe challenges,restricting the exertion of the legal role,so as to form The predicament of “difficulous rights protection,difficulty in proof,difficulty in compensation,difficulty in trial,and difficulty in winning a case”.To balance the reality and history,the special legislation of trade secrets will certainly benefit the maintenance of the competition order and the observance of business ethics.The transformation and upgrading of the industrial structure,the transformation of government functions,and the reasonable demands in trade disputes also reflect the strong voice of the specific legislation on trade secrets.The trade secrets from the perspective of legal interest will also be given a new era connotation:The emergence of the characteristics of property rights has transformed trade secrets from passive defense to active use;The punitive damages mechanism has also broadened the channels of civil remedies,and to some extent compensated for the limited role of criminal means;The continuing role of creative incentives highlights the contradiction between the “rich”of trade secrets and the “poverty” of legal protection.Combining the valuable experience that existing legislation has provided for the special legislation of trade secrets,it can be said that China has already possessed the theoretical and practical basis for the special legislation of trade secrets.From the perspective of extraterritorial experience,special legislation on trade secret protection has become a trend.The United States amended the Law on the Protection of Trade Secrets on the basis of the Economic Espionage Act,thereby opening up the federal and state joint jurisdiction over private lawsuits against trade secrets.The European Parliament and the Council also adopted the Trade Secret Protection Directive and required the relevant member states to convert it into domestic law within a time limit.The Directive provides a minimum of protection for trade secrets,while at the same time making the laws of the EU member states more diverse and even fragmented.The useful exploration of the development of extraterritorial trade secrets also provides valuable experience for China to conduct special legislation on trade secrets.It is particularly important to improve the relevant laws on the protection of trade secrets in China,especially the special legislation for the timely protection of trade secrets.Starting from the actual needs,in the legislative process of the trade secret law,China should be focus on these issues:“balanced proof responsibility allocation and burden of proof allocation”,“determining the scientific damage compensation calculation method”,“improving the litigation relief measures against commercial secrets”and so on.On the other hand,under the framework of the law,enterprises should also construct and improve the risk prevention and control of trade secrets.The premise of external protection is the improvement of internal protection,thus achieving the organic unification of internal prevention and control and external prevention.