Research On The Third Party’s Infringement System Of Trade Secret In Good Faith In China

In the era of rapid economic development,in order to expand market share and gain competitive advantage,enterprises focus on the intangible property headed by technology and information.Correspondingly,the cases of infringement of trade secrets by the third party occur frequently.The system of bona fide third party infringement is related to the balance of interests of many parties,which affects the high-quality development of market economy.However,due to the scattered legislation and the lack of operability of the system of bona fide third party infringement of trade secrets in China,the system of bona fide third party infringement of trade secrets has become increasingly popular,At the same time,because the interpretation of the Supreme People’s Court on Several Issues concerning the application of law in the trial of technology contract disputes and the regulations of Shenzhen Special Economic Zone on the protection of enterprise technical secrets have made opposite provisions on the civil liability of bona fide third party,the phenomenon of different judgments in the same case in practice appears.Therefore,it is urgent to find and analyze the shortcomings of the current system in combination with the legislative status and judicial practice of the bona fide third party infringement system of trade secrets in China,and put forward the specific improvement rules of the bona fide third party infringement system of trade secrets in China in combination with the beneficial experience of foreign countries.The main contents of this paper are as followsFirst of all,combing and analyzing the status quo of relevant legislation and judicial practice,summed up the shortcomings of the current system.It is found that the system of bona fide third party infringement of trade secrets has the following shortcomings: the standard of the third party’s subjective bona fide identification,the applicable time and the burden of proof are not clear;The standard of proof of the third party’s subjective knowledge is not explained by the obligee;The civil liability of the third party in good faith can not be unified,and whether it is allowed to continue to use trade secrets under certain circumstances.In the research method of this paper,this part uses the method of literature analysis and case analysis,lists the relevant legislation,and tries to analyze the current situation of judicial practice as objectively as possible,and then summarizes the controversial points and shortcomings of the judgment,so as to highlight the research significance of this paper.Secondly,the foreign experience of bona fide third party infringement system of trade secrets.On the basis of combing,analyzing and summarizing in the first part of this paper,this part takes the representative countries of the two legal systems as the research objects,selects the relevant regulations and theories of Britain and the United States,Germany and Japan,and combs and analyzes them.By using the method of comparative analysis,it summarizes the similarities and differences of the relevant systems at home and abroad,and carries out the dross removal and the reform of the relevant systems abroad After taking the essence,adopt the advanced experience of the system,and provide some suggestions for the improvement of the fourth part of the system.Thirdly,it explores the theoretical basis involved in the system of bona fide third party infringement of trade secrets.The infringement system of bona fide third party of trade secret should follow the principle of balance of interests and fairness,and weigh the conflict of interests when the obligee and bona fide third party have disputes.At the same time,the property theory of trade secrets solves the problem that the previous contract theory can not regulate the infringement by the third party outside the agreement;The rights of bona fide third party are not boundless.On the contrary,the boundary of their rights is affected by the value,secrecy and confidentiality of trade secrets.In addition,in the field of trade secrets,the right to stop infringement and eliminate nuisance is not based on fault,and it is necessary to apply the principle of fault presumption to the liability for damages.Finally,based on the above theories and methods,the system of bona fide third party infringement of trade secrets in China is improved.In the aspect of the standard of good faith,we should combine the burden of proof of the third party’s subjective good faith with the judgment standard of the judicial organ to determine whether the third party is good faith or not;However,in judicial practice,the judge requires the plaintiff to prove that the third party knows or should know subjectively,which belongs to the transfer of burden of proof.Meanwhile,the "notice" behavior of the obligee should be clearly defined;In terms of liability,the third party is exempted from the liability for damages in the case of subjective good faith,but when the obligee takes reasonable "notice" behavior or brings a lawsuit to the court,the third party should immediately stop the tort,but when the third party in good faith has paid reasonable consideration or substantially changed its own state,It can carry out subsequent use behavior to a limited extent.