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Necessity -- Discussion on the establishment of property rights theory and no-fault liability misunderstanding and approach of Chinese business secret legislation

Author: LiLiang From: www.yourpaper.net Posted: 2010-05-30 00:56:06 Read:
[Keywords] commercial secret acts of unfair competition, property rights   fault liability; liability without fault
[Abstract] with the development of economy, social requirements for the protection of commercial secrets of the increasingly high.Due to the current lack of legislation, China's trade secrets Dispute Adjudication in infringement cognizance and relief measures applicable constraints.According to the United States seventy's "DuPont Co v. Christof" case as an example, demonstrates the establishment of property rights theory and no-fault liability necessity in the field of trade secrets, and put forward feasible suggestions about trade secret law.
, problem
The United States Federal Fifth Circuit Court of Appeals in 1970 decision "DuPont Co v. Christof" is a classic case of trade secret protection.1969 March. Method of manufacturing DuPont Co developed a top-secret methanol. And set up factories in production. But the initial production parts of the factory has not been added to the top.Local photographer Christof brothers driving private jet in the air on the production process of the film. After the identification of the group of pictures DuPont Co have been resold to third people.DuPont Co sued. Request court issued a temporary and permanent ban. Prohibit further diffusion photos. And to propose a motion to court for compulsory disclosure of data on third adults.Christof brothers argues. He is in the premise of not in violation of any federal aviation regulations, shooting in the public domain. Its behavior without blaming.
The court cited restatement of tort law. "In 1939 that manufacturing method of methanol DuPont Co's business secrets.But according to (restatement of tort law "article 757 comments. Illegal access to others' business secret only two kinds: one kind is" improper means. Another is the "breach of an obligation of confidentiality".The obligation of confidentiality arises express or implied contract based on the employment relationship. As obviously, the defendant does not have any obligation of confidentiality to the plaintiff.According to the restatement of tort law "757 to 759." improper means "mostly refers to theft, bribery or lure employees disclosure espionage. It is" unfair "competition behavior. Even the most broad literal interpretation can only be" below the general business ethics standard and reasonable standards of behavior methods".Christof brothers is in the "public sphere". To identify the illegal shot without any precedent.
However, the court made a breakthrough decision: "improper means" refers to the "means" (such as reverse engineering, independent development) outside of any access to others' business secret behavior. Any "do not spend time and money to independently develop and obtain behavior" commercial secrets are improper means.The court held that the defendant. Shooting behavior is invasion to "illegal" (Infringement) means violating commercial secrets of the plaintiff.That is to say, as long as not belonging to your own intellectual achievements. Any unauthorized access behavior can assume responsibility.This case shows that the law will begin. Business secret as a kind of "has the exclusive property of the nature of the information." trade secret has been from the "human rights" to "right in rem".Later in the United States in 1979 "Uniform Trade Secrets Act" and 1995's "Anti-Unfair Competition Law" has also repeatedly cited restatement of this classic case. More firmly "property rights" trade secret status.
Then. Such an occurrence in case the United States of the last century. If happened in China today. What happens?
1 court of shooting behavior qualitatively how 7 due to the plaintiff and the defendant is not any particular relationship. Therefore. China's labor law or contract law does not apply to this case. The plaintiff can only mention "tort". The applicable laws and regulations related to the 1993 "Anti-Unfair Competition Law" and 1995 "ban on assault business secret behavior regulations" (hereinafter referred to as "Regulations").But in fact. "Anti-Unfair Competition Law" second paragraph second: "unfair competition" as mentioned in this Law refers to the operator. Is a violation of the provisions of this law, damage the lawful rights and interests of other operators or disrupt social economic order behavior ".Apparently, unfair competition in China (tort) behavior. Must be "operator", between business ethics behavior.Therefore, adjusting range shooting behavior of the case does not belong to China's "Anti-Unfair Competition Law" and "Regulations".
Some people may think. Even under the Anti-unfair Competition Law "can not tort. You can also apply to the" general principles of civil law of tort liability in the general provisions. The second paragraph 106: "citizens, legal persons fault encroach upon state, collective property, infringement of property, the person shall bear civil responsibility.But if the provisions applicable to this case. The author thinks that in two ways: (1) in the "general principles of civil law" the fifth chapter "the civil rights" section third "intellectual property", and no mention of "commercial secret right".If the infringement of trade secret "presumption" belongs to the 106 refers to the "violation of property is not convincing (2) even if reluctantly as infringement of property rights. But this requires violations must be" because of fault.According to the common sense of citizens in public airspace. "" shooting has nothing to do with the specific personal landscape pictures. What is wrong with the 7 visible. Tort law system of China are also incapable of action.In the case of DuPont. Due to the plaintiff and the defendant has no similar "operators" competition between, the defendant behavior does not have fault, according to Chinese law. Christof's conduct did not constitute infringement.
The 2 plaintiffs would "spread" no pictures of the request can be satisfied. 7 in DuPont case. The defendant and the three person is not the technical secret or production using this technique.Although the plaintiff DuPont Co fails to explain his economic "damage results." can still request the court issued a temporary injunction or permanent injunction.So Chinese law whether to support such request. 7 in fact. At present our country "- only twentieth unfair competition law" provisions of the "liability for infringement on trade secret." Regulations "in the" ban "despite similar provisions. But this measures only belongs to administrative measures in this two 4 Department of laws and regulations are not found" temporary or permanent "ban on some of the acts specified in."General principles of civil law" and "civil liability" in chapter 134th. Although the "stop the infringement and" interference "with the United States ban system has some similarities. But due to the fault of tort imputation principle. It has been discussed above are not taken" fault ", therefore the plaintiff's request not ban. Is Chinese legal support.
To sum up. If DuPont case happened in China today. The DuPont Co will reluctantly had to.If the occurrence of similar disputes. The rights of people may not be able to find protection from judicature in china.Thus, further analysis and solve the existing problems in legislation is necessary.
two Chinese current lack of legislation of
Since there is no independent adjustment of trade secret law. The formation of the Anti-unfair Competition Law "article tenth as the core." labor law "," contract law "and" general principles of civil law "and other individual terms adjustment dispersion situation.Infringements of business secrets our current laws can regulation is mainly two kinds: one is the breach of an obligation of confidentiality. One is the improper act of tort.Two kinds of behavior in its scope and the United States in 1939 "restatement of tort law" as the basic same.However, in the case of the United States of America DuPont. In the 70's through the adjustment range of the restatement of torts ". China still remain in merely prohibits of the two kinds of behavior level.The author thinks. To change this situation. We must to the following two direction.
1 according to the scope of patent protection to define the infringements of business secrets.As countries have entered the "era of the information economy". In addition to the patented invention. A large number of technical secrets and business secrets becomes the core property companies rely on. More and more be regarded as a kind of "has the exclusive property of the nature of the information" (ProprietaryInformation). It is more and more strict protection.Can say, in most developed countries today. The property right theory of business secret is the dominant.While the TRlPS seventh section to "undisclosed information" provisions. The trade secrets has become an important member of the international intellectual property system.
In fact, in recent years, for the protection of commercial secrets of the pressure field of business in China is rising. Only limited "Anti-Unfair Competition Law" to deal with the pressure of typical defects have completely unmasked in the DuPont case.Legal sources "and" acts of unfair competition in. "There are still a lot of gray zone".Large number of unauthorized obtaining commercial secrets act (such as the shooting behavior) belongs to non commercial behavior. On the surface and not in violation of other laws. But in fact the commercial secrets have been damaged.To change this situation. First of all to establish commercial property status secret. Then we can give the corresponding row
He protection.
Some people think that the exclusive commercial secret protection cannot have the similar property rights like patents. Because the patent inventor disclose their inventions. Contribute to the society. The exclusive protection is the society to give the patent inventor reward. And give commercial secret right of status will not be conducive to encourage inventors to disclose technology.The author thinks that this kind of understanding is wrong.(1) the biggest difference between trade secret right and patent right is not generated against others through "independent development" or "reverse engineering" means the results (often referred to as a "legal source.") but at best can only say that it has "weak" exclusive. But cannot say that it is completely not exclusive.(2) the trade secret law's role is to encourage the development and utilization of less than or different from those in accordance with the patent law and protected by the intellectual achievements, for example, does not belong to the object of patent intelligence achievement (such as a list of customers, business plan), does not meet the patent right "three" standard of invention and patent application for invention is etc..These intellectual contribution to society is enormous.
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