论商业秘密的道德维度

On the Moral Dimensionality of Business Secret

商业秘密与社会道德超乎寻常地联系在一起。商业秘密因其经济合理性和社会妥当性 ,具有内在的道德性价值依据 ,才为人所认同与尊重 ,进而成为一种财产权。商业秘密产权的划定涉及到多元化的利益关系 ,商业秘密在公共知识与私有知识、排他性与共享性、雇主与雇员知识权利的划分等问题上纳入了道德的考量标准 ,使相互冲突的利益得以中和。商业秘密的财产法保护具有较大的局限性 ,将其纳入反不正当竞争法的保护范围 ,旨在通过维护竞争中的道德底线 ,构筑权利维护的第二防线。

Business secret and moral are particularly interlinked. Due to its economic rationality and social appropriateness, it is inherently of moral value. Therefore, it is identified and respected by people and considered as a property. Its definition requires considering such multiple interests as public knowledge and private knowledge, exclusiveness and share, right of employer and employee; delimiting such interests shall take moral into consideration and balance these conflicting interests. Protecting of business secret with property law has considerable limitations. Thus, it is advisable to protect business secret with unfair competition law, maintain the moral base line in competition and form the second defense line in protecting business secret.