我国技术秘密职务发明人权益保护问题研究
发布时间：2018-11-17 16:42
【摘要】：在当今时代,技术秘密俨然成为企业的核心竞争力,其发展前景不可限量。与此同时,我国技术秘密有关立法上存在着明显的缺失:一者无统一的技术秘密法;二者技术秘密相关立法分散在不同的法律部门。在技术秘密发明中,人才成为关键,但是现有的技术秘密相关法律却对其权益没有规定,现实中企业对于技术秘密发明人的权益也重视不够甚至一再侵害其权益,极容易造成人才的流失,长久下去也不利于我国的经济发展和科技水平的提高。2013年《职务发明条例草案》的发布和讨论成为重要的转机,标志着技术秘密已然被纳入调整范围,技术秘密职务发明人的权益保护成为可能。本文即以《职务发明条例草案》发布为契机并以其为蓝本,以技术秘密职务发明为研究视角,通过厘清技术秘密和职务发明二者的相互关系,构建技术秘密职务发明的关联机制,在现有的法律框架基础上探索技术秘密职务发明人享有的权利和权益保护存在的问题,在考察西方发达国家技术秘密职务发明人权益保护方面的理论实践,提出笔者的相关完善之策。第一部分是技术秘密职务发明人的基本内涵。对技术秘密和职务发明的概念进一步分别加以界定,明晰两者之间相互包涵关系,并最终厘清技术秘密职务发明人的概念。具体分析了技术秘密的法律属性、特征、与专利的区分,以及职务发明的权属问题。第二部分是技术秘密职务发明人权益保护的立法现状以及保护必要性分析。对我国的技术秘密职务发明人权益保护立法现状进行剖析,指出我国技术秘密立法上的缺陷和问题,并对保护的必要性进行阐述。第三部分是国外技术秘密职务发明人权益保护之借鉴考察。通过对美国、德国、日本和法国职务发明制度的立法考察,提出我国职务发明在技术秘密职务发明人权益保护方面可资借鉴的方面。第四部分是技术秘密职务发明人权益保护的制度建构。首先指出我国技术秘密职务发明人权益保护制度化应遵循的基本原则,即利益平衡、效率与公平等原则;其次,指出技术秘密职务发明人权益保护制度化路径,在将技术秘密规范调整纳入立法保护路径的基础上最终提出在具体层面的建构方法。
[Abstract]:In the present era, technology secret has become the core competitiveness of enterprises, and its development prospects are unlimited. At the same time, there are obvious defects in the legislation of technology secret in our country: one has no uniform law on technology secret, and the other is scattered in different legal departments. In the technology secret invention, the talented person becomes the key, but the existing technology secret related law does not have the stipulation to its rights and interests, in reality, the enterprise also does not pay enough attention to the technology secret inventor's rights and interests, even infringes its rights and interests again and again. It is very easy to cause brain drain, and it is not conducive to the economic development and the improvement of science and technology in our country for a long time. The issuance and discussion of the "Job inventions Bill" in 2013 has become an important turning point. The technical secret has been brought into the scope of adjustment and the protection of the rights and interests of the inventor of the technical secret position has become possible. This paper takes the publication of the "Bill on Job inventions" as an opportunity, takes it as a blueprint, and takes the "Technical Secret" as a research angle of view, and clarifies the relationship between the technological secrets and the "job inventions". The related mechanism of the invention of technology secret duty is constructed, and the problems existing in the protection of the rights and interests of the inventor of the technology secret post are explored on the basis of the existing legal framework. This paper investigates the theory and practice of the protection of the rights and interests of the inventors in the technical secret positions in the western developed countries, and puts forward some suggestions for the improvement of the author's rights and interests. The first part is the basic connotation of the inventor of the technical secret position. The concepts of technology secret and duty invention are further defined, the relationship between them is clarified, and the concept of the inventor of technology secret duty is finally clarified. This paper analyzes the legal attributes, characteristics, distinction between technical secrets and patents, as well as the ownership of job inventions. The second part is the analysis of the legislative status and the necessity of protecting the rights and interests of the inventors. This paper analyzes the present situation of the legislation on the protection of the rights and interests of the inventors of the technical secret duty in our country, points out the defects and problems in the legislation of the technology secret in our country, and expounds the necessity of the protection. The third part is the reference and investigation of the protection of the rights and interests of the inventors in foreign technical secret positions. Based on the legislative investigation of the American, German, Japanese and French job invention systems, this paper puts forward some aspects that can be used for reference in the protection of the rights and interests of the technical secret job inventors in our country. The fourth part is the construction of the system of protecting the rights and interests of the inventors. Firstly, it points out the basic principles that should be followed in the institutionalization of the protection of the rights and interests of the inventors of the technical secret positions in our country, namely, the principles of balance of interests, efficiency and fairness; Secondly, it points out the institutionalized path of the protection of the rights and interests of the inventors of the technical secret position, and finally puts forward the construction method at the concrete level on the basis of bringing the regulation of the technical secret into the legislative protection path.
【学位授予单位】：东北师范大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.42
[Abstract]:In the present era, technology secret has become the core competitiveness of enterprises, and its development prospects are unlimited. At the same time, there are obvious defects in the legislation of technology secret in our country: one has no uniform law on technology secret, and the other is scattered in different legal departments. In the technology secret invention, the talented person becomes the key, but the existing technology secret related law does not have the stipulation to its rights and interests, in reality, the enterprise also does not pay enough attention to the technology secret inventor's rights and interests, even infringes its rights and interests again and again. It is very easy to cause brain drain, and it is not conducive to the economic development and the improvement of science and technology in our country for a long time. The issuance and discussion of the "Job inventions Bill" in 2013 has become an important turning point. The technical secret has been brought into the scope of adjustment and the protection of the rights and interests of the inventor of the technical secret position has become possible. This paper takes the publication of the "Bill on Job inventions" as an opportunity, takes it as a blueprint, and takes the "Technical Secret" as a research angle of view, and clarifies the relationship between the technological secrets and the "job inventions". The related mechanism of the invention of technology secret duty is constructed, and the problems existing in the protection of the rights and interests of the inventor of the technology secret post are explored on the basis of the existing legal framework. This paper investigates the theory and practice of the protection of the rights and interests of the inventors in the technical secret positions in the western developed countries, and puts forward some suggestions for the improvement of the author's rights and interests. The first part is the basic connotation of the inventor of the technical secret position. The concepts of technology secret and duty invention are further defined, the relationship between them is clarified, and the concept of the inventor of technology secret duty is finally clarified. This paper analyzes the legal attributes, characteristics, distinction between technical secrets and patents, as well as the ownership of job inventions. The second part is the analysis of the legislative status and the necessity of protecting the rights and interests of the inventors. This paper analyzes the present situation of the legislation on the protection of the rights and interests of the inventors of the technical secret duty in our country, points out the defects and problems in the legislation of the technology secret in our country, and expounds the necessity of the protection. The third part is the reference and investigation of the protection of the rights and interests of the inventors in foreign technical secret positions. Based on the legislative investigation of the American, German, Japanese and French job invention systems, this paper puts forward some aspects that can be used for reference in the protection of the rights and interests of the technical secret job inventors in our country. The fourth part is the construction of the system of protecting the rights and interests of the inventors. Firstly, it points out the basic principles that should be followed in the institutionalization of the protection of the rights and interests of the inventors of the technical secret positions in our country, namely, the principles of balance of interests, efficiency and fairness; Secondly, it points out the institutionalized path of the protection of the rights and interests of the inventors of the technical secret position, and finally puts forward the construction method at the concrete level on the basis of bringing the regulation of the technical secret into the legislative protection path.
【学位授予单位】：东北师范大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.42
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