商業(yè)秘密的保護(hù)與信息披露
發(fā)布時(shí)間：2018-11-09 15:51
【摘要】： 我國目前對(duì)商業(yè)秘密保護(hù)的有關(guān)法律規(guī)定散落在《反不正當(dāng)競爭法》、《刑法》、《合同法》和《勞動(dòng)法》以及《對(duì)外貿(mào)易法》等法律規(guī)范中,缺乏系統(tǒng)而完整的單行法加以調(diào)整。隨著知識(shí)經(jīng)濟(jì)的到來,科學(xué)技術(shù)不斷高速發(fā)展,除了在傳統(tǒng)知識(shí)產(chǎn)權(quán)體系下對(duì)技術(shù)和信息加以保護(hù)外,針對(duì)某些信息的特殊性要求通過商業(yè)秘密法加以保護(hù)的模式越來越受到人們的重視。 信息披露制度的建立與完善主要是為了滿足公眾知情權(quán)的需求。知情權(quán)是現(xiàn)代法律發(fā)展過程中出現(xiàn)的一個(gè)概念,從早期作為保護(hù)新聞自由的原則依據(jù)逐漸滲透到廣泛的社會(huì)諸多領(lǐng)域之中,其內(nèi)涵也發(fā)生了深刻的變化,因此成為了公民在社會(huì)生活中的一項(xiàng)基本權(quán)利,體現(xiàn)了公民對(duì)信息利益的要求。知情權(quán)所保障的就是生命利益和財(cái)產(chǎn)利益之外的自由利益,即信息自由的實(shí)現(xiàn)。信息披露可以歸納為知情權(quán)的義務(wù)主體主動(dòng)地公開相關(guān)信息。知情權(quán)義務(wù)主體大致分為兩大類:一類是公法領(lǐng)域內(nèi)政府行政機(jī)構(gòu);另一類是私法領(lǐng)域內(nèi)掌握大量商業(yè)秘密的經(jīng)濟(jì)個(gè)體,包括參與經(jīng)濟(jì)運(yùn)行的企業(yè)、團(tuán)體和個(gè)人。本文重點(diǎn)關(guān)注的是后一類知情權(quán)義務(wù)主體的信息披露與商業(yè)秘密沖突及其解決。商業(yè)秘密的私權(quán)性顯而易見,其構(gòu)成要件上要求對(duì)特定信息加以保密,杜絕信息擴(kuò)散;信息披露卻恰恰相反,對(duì)于特定的信息要求公開,使得普通公眾所知悉,即兩者之間相互對(duì)立的沖突主要表現(xiàn)在公開理念與保密理念的價(jià)值沖突之上,實(shí)質(zhì)上體現(xiàn)了以社會(huì)為本位的公權(quán)與以個(gè)體為本位的私權(quán)之間的矛盾,這也是本文重點(diǎn)闡述的內(nèi)容。 本文首先概述了商業(yè)秘密和知情權(quán)基本概念;接下來重點(diǎn)論述作為私權(quán)性的商業(yè)秘密與信息披露制度之間價(jià)值張力沖突;然后按照經(jīng)營信息和技術(shù)秘密的分類,詳細(xì)介紹了商業(yè)秘密信息在披露和保護(hù)兩方面之間的協(xié)調(diào)和平衡。最后,筆者針對(duì)我國商業(yè)秘密立法的現(xiàn)狀,指出現(xiàn)存立法中對(duì)于商業(yè)秘密保護(hù)問題不足之處,重點(diǎn)從信息披露制度構(gòu)建的角度提出若干可行性建議,進(jìn)而為最終《商業(yè)秘密法》的制定進(jìn)行理論上探討。
[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.
【學(xué)位授予單位】：華中科技大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2007
【分類號(hào)】：D922.294
本文編號(hào)：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.
【學(xué)位授予單位】：華中科技大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2007
【分類號(hào)】：D922.294
【引證文獻(xiàn)】
相關(guān)碩士學(xué)位論文 前1條
1 潘丹元;論上市公司信息披露與信息秘密保護(hù)之沖突和協(xié)調(diào)[D];寧波大學(xué);2010年
，本文編號(hào)：2320860
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