Trade Secret and Non-competition Clause --Focus on TSMC v. Liang Case

• Main Authors: HSU, YI-PING, 徐依屏
• Other Authors: 蕭宏宜
• Format: Others
• Language: zh-TW
• Published: 2018
• Online Access: http://ndltd.ncl.edu.tw/handle/833ddm

碩士 === 東吳大學 === 法律學系 === 106 === In recent years, Taiwan’s technology enterprises have frequently confronted malicious poaching and trade secret misappropriation by foreign enterprises, which greatly affects the technological advantages and international competitiveness of Taiwan's industry for many years. The flow of talent in the technology industry, including job-hopping and poaching, is normality. How to strike a balance between the protection of the profits of a company and employees’ right to work and job changing, is a critical issue for maintaining Taiwan's industrial competitiveness and promoting technology development. A technology enterprise keeps its edge by protecting its trade secrets. Therefore, to restrain employees from divulging its trade secrets, most companies will demand the departing employees to sign a non-competition clause or a non-disclosure agreement. However, in the course of employment, employees are probably to access and memorize an employer’s trade secrets, and further develop their expertise. As an employee works for a competitor or starts his own company, there is much controversy over non-competition clause and divulging trade secrets because an employee is quite difficult to block out trade secrets from his own general knowledge and skills. The judgment of TSMC v. Liang is the first judgment made by the Taiwan’s court to "restrain a departing employee from working for a competitor after expiration of a non-competition clause." Because the ratio decidendi is approximate to the "inevitable disclosure doctrine" in the United States law, there are various opinions on the introduction of the inevitable disclosure theory to Taiwan’s law In addition to analyzing TSMC v. Liang, this article discusses the three elements of trade secrets and the reasonable conditions for a non-competition clauses. Secondly, it analyzes the civil remedies and criminal liability for trade secret misappropriation in Taiwan, the United States and Japan. And further, it discusses the introduction of the inevitable disclosure theory to Taiwan’s civil law and criminal law.