商业秘密的保护与信息披露
发布时间：2018-11-09 15:51
【摘要】： 我国目前对商业秘密保护的有关法律规定散落在《反不正当竞争法》、《刑法》、《合同法》和《劳动法》以及《对外贸易法》等法律规范中,缺乏系统而完整的单行法加以调整。随着知识经济的到来,科学技术不断高速发展,除了在传统知识产权体系下对技术和信息加以保护外,针对某些信息的特殊性要求通过商业秘密法加以保护的模式越来越受到人们的重视。 信息披露制度的建立与完善主要是为了满足公众知情权的需求。知情权是现代法律发展过程中出现的一个概念,从早期作为保护新闻自由的原则依据逐渐渗透到广泛的社会诸多领域之中,其内涵也发生了深刻的变化,因此成为了公民在社会生活中的一项基本权利,体现了公民对信息利益的要求。知情权所保障的就是生命利益和财产利益之外的自由利益,即信息自由的实现。信息披露可以归纳为知情权的义务主体主动地公开相关信息。知情权义务主体大致分为两大类:一类是公法领域内政府行政机构;另一类是私法领域内掌握大量商业秘密的经济个体,包括参与经济运行的企业、团体和个人。本文重点关注的是后一类知情权义务主体的信息披露与商业秘密冲突及其解决。商业秘密的私权性显而易见,其构成要件上要求对特定信息加以保密,杜绝信息扩散;信息披露却恰恰相反,对于特定的信息要求公开,使得普通公众所知悉,即两者之间相互对立的冲突主要表现在公开理念与保密理念的价值冲突之上,实质上体现了以社会为本位的公权与以个体为本位的私权之间的矛盾,这也是本文重点阐述的内容。 本文首先概述了商业秘密和知情权基本概念;接下来重点论述作为私权性的商业秘密与信息披露制度之间价值张力冲突;然后按照经营信息和技术秘密的分类,详细介绍了商业秘密信息在披露和保护两方面之间的协调和平衡。最后,笔者针对我国商业秘密立法的现状,指出现存立法中对于商业秘密保护问题不足之处,重点从信息披露制度构建的角度提出若干可行性建议,进而为最终《商业秘密法》的制定进行理论上探讨。
[Abstract]:At present, the relevant legal provisions on the protection of trade secrets in China are scattered in the legal norms of the Anti-unfair Competition Law, the Criminal Law, the contract Law and the Labor Law, as well as the Foreign Trade Law. There is a lack of a systematic and complete single law to adjust it. With the advent of knowledge economy, science and technology are developing at a high speed. In addition to protecting technology and information under the traditional intellectual property system, In view of the particularity of some information, people pay more and more attention to the mode of protecting by trade secret law. The establishment and perfection of information disclosure system is mainly to meet the needs of the public's right to know. The right to know is a concept emerging in the course of the development of modern law. From the early stage as the basis of the principle of protecting press freedom, it has gradually penetrated into a wide range of social fields, and its connotation has also undergone profound changes. Therefore, it has become a basic right of citizens in social life and reflects the requirements of citizens for information interests. What the right to know guarantees is the free interest beyond the life interest and the property interest, that is, the realization of the freedom of information. Information disclosure can be summed up as the right to know the obligation to actively disclose relevant information. The subject of the right to know is divided into two categories: one is the government administrative agency in the field of public law; the other is the economic individual who holds a large number of commercial secrets in the field of private law, including the enterprises, groups and individuals participating in the economic operation. This paper focuses on the conflict between the disclosure of information and the trade secret of the subject of the right to know. The private right of trade secret is obvious, and its constituent elements require that the specific information should be kept secret and the information should be prevented from spreading. Information disclosure, on the contrary, requires disclosure of specific information, which makes the general public aware that the conflict between the two is mainly reflected in the conflict of value between the public idea and the idea of confidentiality. In essence, it reflects the contradiction between the public right based on the society and the private right based on the individual, which is also the content of this paper. This paper first outlines the basic concepts of trade secret and the right to know, and then focuses on the conflict of value tension between the private trade secret and the information disclosure system. Then, according to the classification of business information and technical secret, the coordination and balance between disclosure and protection of trade secret information are introduced in detail. Finally, according to the current situation of China's trade secret legislation, the author points out the shortcomings of the existing legislation on the protection of trade secrets, and puts forward some feasible suggestions from the perspective of the construction of information disclosure system. Finally, the establishment of the Trade Secrets Act is discussed theoretically.
【学位授予单位】：华中科技大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D922.294
本文编号：2320860
[Abstract]:At present, the relevant legal provisions on the protection of trade secrets in China are scattered in the legal norms of the Anti-unfair Competition Law, the Criminal Law, the contract Law and the Labor Law, as well as the Foreign Trade Law. There is a lack of a systematic and complete single law to adjust it. With the advent of knowledge economy, science and technology are developing at a high speed. In addition to protecting technology and information under the traditional intellectual property system, In view of the particularity of some information, people pay more and more attention to the mode of protecting by trade secret law. The establishment and perfection of information disclosure system is mainly to meet the needs of the public's right to know. The right to know is a concept emerging in the course of the development of modern law. From the early stage as the basis of the principle of protecting press freedom, it has gradually penetrated into a wide range of social fields, and its connotation has also undergone profound changes. Therefore, it has become a basic right of citizens in social life and reflects the requirements of citizens for information interests. What the right to know guarantees is the free interest beyond the life interest and the property interest, that is, the realization of the freedom of information. Information disclosure can be summed up as the right to know the obligation to actively disclose relevant information. The subject of the right to know is divided into two categories: one is the government administrative agency in the field of public law; the other is the economic individual who holds a large number of commercial secrets in the field of private law, including the enterprises, groups and individuals participating in the economic operation. This paper focuses on the conflict between the disclosure of information and the trade secret of the subject of the right to know. The private right of trade secret is obvious, and its constituent elements require that the specific information should be kept secret and the information should be prevented from spreading. Information disclosure, on the contrary, requires disclosure of specific information, which makes the general public aware that the conflict between the two is mainly reflected in the conflict of value between the public idea and the idea of confidentiality. In essence, it reflects the contradiction between the public right based on the society and the private right based on the individual, which is also the content of this paper. This paper first outlines the basic concepts of trade secret and the right to know, and then focuses on the conflict of value tension between the private trade secret and the information disclosure system. Then, according to the classification of business information and technical secret, the coordination and balance between disclosure and protection of trade secret information are introduced in detail. Finally, according to the current situation of China's trade secret legislation, the author points out the shortcomings of the existing legislation on the protection of trade secrets, and puts forward some feasible suggestions from the perspective of the construction of information disclosure system. Finally, the establishment of the Trade Secrets Act is discussed theoretically.
【学位授予单位】：华中科技大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D922.294
【引证文献】
相关硕士学位论文 前1条
1 潘丹元;论上市公司信息披露与信息秘密保护之冲突和协调[D];宁波大学;2010年
，本文编号：2320860
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