| Summary: | 碩士 === 東吳大學 === 法律學系 === 105 === Departing employees are often among the actors of trade secret misappropriation.
With innovation in technologies and commerce, departing employees can easily jeopardize the competitive edge of the owner of trade secrets (for example, by using a flash drive to store trade secrets), and even harm the industry nationwide. Although the criminalization of trade secret theft began in 2013, and the Trade Secret Act of R.O.C has added criminal provisions for almost five years, such crime committed by departing employees has never stopped. Changes of the legal policy have been proposed by the Administration in 2017. For instance, as the industries advised, prosecution for extraterritorial misappropriation of trade secrets maybe instituted only upon a complaint, instead of as indictable crime. And the Prosecution Section shall also abide orders to preserve confidentiality of trade secrets. It has now become clear that the private sector has been a severe victim of trade secret theft. However, the criminalization efforts do not seem to deter such acts.
Trade secret misappropriation is investigated by the Prosecution Section. However, under the principle of In Dubio Pro Reo, the injured party is burdened with providing evidence which may disclose trade secrets, and such burden is no lighter than that of civil cases. In merely proving the infringed object as the criminal object, the law requires: (a) It is not known to persons generally involved in the information of this type; (b) It has economic value, actual or potential, due to its secretive nature; (c) Its owner has taken reasonable measures to maintain its secrecy. This has been the primary sticking point to investigate, prosecute or rule cases of trade secret misappropriation. Moreover, the pressing need of the legal protection for trade secrets may have sacrificed a more thorough consideration on the criminal elements of such acts.
The possibility of facing criminal charges may deter trade secret misappropriation, but it may not be powerful in protecting the leading edge of businesses. The aim of this thesis is to emphasize the protection of economic order and social legal interest as the core of criminal regulation in punishing impediment of fair competition. In terms of protecting trade secrets as personal possession, the legal provision of confidentiality and the non-competition clause shall play efficient roles. Furthermore, Article 11 of Trade Secret Act, which in practice can well serve as injunction, can be more effective in protecting trade secrets than criminal prosecution.
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