Deconstruction of the Legal Basis of Trade Secret Protection-Through the Conflict Between Efficiency Theory and Moral Theory

After the “Civil Code” incorporated trade secrets into the object of intellectual property, trade secrets have been transformed into rights. There is no substantive dispute about whether to protect trade secrets at the first level of legitimacy, but there are still different perspectives on the issue of why trade secrets at the second level should be protected. Therefore, it is necessary to deconstruct and analyze the legitimacy basis of the protection of trade secrets in order to choose the solution which is closest to the legislative purpose and market trend in practice. The justification for the protection of trade secrets can be typically divided into the “moral theory” evolution from the labor theory of property rights and the “efficiency theory” evolved from “utilitarianism”. Although the “moral theory” has its own theoretical value in some commercial fields, there are still ambiguous judgments on the path of business ethics, the theoretical obstacles like the moral recognition problem, the compatibility of morality in the context of business, and the humility of morality in the market economy. The high-quality connotation of the “moral theory” is guided by the “efficiency theory”, which can obtain more clear and accurate guidance for the protection of trade secrets, specifically to stimulate research and innovation, correctly configure confidential expenditures, and promote the disclosure and sharing of specific information, and the defense of public interest.