我國強化營業秘密保護法制政策之檢討——以美中貿易戰及相關案例為借鏡

2018年開始的美中貿易戰，一波未平一波又起。美國一直以來是世界強權之一，而中國正慢慢在世界舞台上站穩一席之地。惟美國發現中國科技發展迅速的原因，跟中國內法制強制要求外國企業技術移轉、以國家主導政策進行營業秘密侵害、及其他智慧財產權方面不健全的法制有關。又，美國的國際地位與其技術發展息息相關，為了確保國家經濟安全與未來高科技產業的發展，不昔發動美中貿易戰談判，決心解決中國上述問題。本文試圖從美中貿易戰中了解中國主導侵害營業秘密的問題，對事情的全貌有更深刻的理解。同時，美國在近年也起訴多件，中國及其企業侵害營業秘密的案例，並且改革美國的法律及政策，因應現代化的營業秘密侵害問題。中國主導侵害營業秘密的手段多元，包含網路間諜、內部滲透、外部合作接觸近用、及人才招募計畫。故法律改革除了事後追訴的優化以外，也要考量能否事前防範，避免秘密的曝光。本文認為，此一議題涉及國家安全，而企業個人無法獨自因應的情況下，我國政府必須肩負責任、主導改革。從美國近年的立法及修法而言，包含：營業秘密民刑事的訴訟法制改革、國家網路安全的建立、確實且具備可預測性的外國投資審查、關鍵技術的出口管制。除此之外，政府應多多關心企業了解其困境、收集情報製作研究報告、將專業資訊及威脅情報流通至私部門、各政府單位針對特定議題定期討論並提供意見、參與國際交流形成夥伴同盟等。這些都是美國近年內努力的方向，而本文認為相當有參考價值。目前我國在以上幾個方面各有缺失，期許本文的研究及建議可給修法及政策一些方向。

關鍵字

營業秘密；美中貿易戰；網路安全；外國投資審查；出口管制；利益衝突

並列摘要

Starting from 2018, U.S.-China Trade War has been through a variety of twists and turns and not yet settled. The United States has always been one of the most powerful countries in the world, and China steadily became an important role in it. However, the U.S. found out the reason why China’s technology had grown rapidly was highly associated with its legal system and government policy, including but not limited to practices such as compulsory technology transfer solely for foreign companies, misappropriation of trade secrets leading by government policies, and other incomplete and outdated intellectual property laws, etc. Moreover, the international status of the U.S. is strongly related to its technological developments. To ensure its national security on economy and advanced technology industries from compromising, the U.S. was committed to going to war against China and would negotiate until the problems are solved. By comprehending the essential issues in U.S.-China Trade War, this study would like to get a full picture of the misappropriation of trade secrets by China of which the U.S. was accusing. During these years, the U.S. law enforcement department has filed numerous lawsuits against the Chinese government and entities regarding the misappropriation of trade secrets. In the meantime, the U.S. federal governement has modernized its laws and policies to confront the issue. In fact, there were multiple tactics of misappropriation leading by the Chinese government. For instance, cyber espionage, infiltrating through inside of the company, accessing through outer collaboration, and talent recruitment project. To cope with these schemes and avoid the exposure of trade secrets, it is necessary to reform laws on aspects of afterward accusations and beforehand precautions. This study is convinced that the issue of the misappropriation of trade secrets is related to national security. Since nongovernmental corporation cannot manage it all by itself, Taiwanese government should take the responsibilty to reform the laws and enforce them. According to the U.S. recent legislation and amendment, these reforms consist of trade secret civil and criminal litigation process, national cybersecurity establishment, substantial and predictable foreign investment review, and export control of critical technologies. Furthermore, the government should take action other than laws, for example, understanding the plight in Taiwanese companies, collecting information to produce research report, informing the private sector of professional advice and threats, different government departments regularly engaging in discussion and offering opinions on specific issues, participating in international communication and joining allied countries. These strategies are also which the U.S. has been working on recently, and this study finds them worth mitigating. Currently, as laws and policies in Taiwan still have deficiencies in the above-mentioned issues, this study is expecting to provide with some recommendations.