商业秘密法律保护模式探讨——兼论我国立法的完善

对于商业秘密的立法保护,既有"行为法"模式,也有"权利法"模式。前者侧重于规制侵犯商业秘密的不正当竞争行为,强调竞争秩序的维护及社会公共利益的保护,形为"宽保护",实为"弱保护";后者侧重于保护权利人的商业秘密权,强调私权保护,形为"窄保护",实属"强保护"。厘清并强调商业秘密的知识产权属性,对确立商业秘密的权利法保护将起着重要的影响乃至决定作用。我国立法现状及司法实践,都亟待权利法的"强保护",即以权利法为中心,以行为法为补充的综合立法保护。

The Discussion on the Model of Trade Secrets Protection and the Perfection of Legislation of China

As for the legal protection of trade secrets, it can be protected by both behavior law and rights law. The former focuses on regulating the unfair competitive behaviors which infringe trade secrets and the protection of the competition order as well as the public interest, which in the form is ＂broad protection＂ and in the fact is ＂weak protection＂. The latter focuses on the protection of the obligee＇ s rights of trade secrets and emphasizes the personal rights, which in the form is ＂narrow protection＂ and in the fact is ＂strong protection＂. To make clear on the nature of trade secrets for being intellectual property and emphasize the nature play an important even decisive role in the legal protection of trade secrets. The current legislative situation and the judicial practice both need the strong protection of rights law, namely the comprehensive legislative protection which is rights-law-centered and takes the behavior law as the supplement.