How to confirm confidentiality measures in the crime of infringement of trade secrets
Determining whether a trade secret has been infringed mainly depends on the following aspects: Proceed:
First of all, it should be determined whether the right holder exists A valid trade secret. Not only should the content of the alleged trade secret be clarified, but the information required to be protected should also be carefully examined to see whether it meets the constituent elements of a trade secret, that is, whether it is confidential, whether it can bring economic benefits, and whether there is reasonable confidentiality. measures and other aspects to determine whether the information should be protected. People's courts generally entrust appraisal departments or appraisers to conduct appraisals on whether trade secrets exist. On the basis of professional technical appraisal, the court will legally determine whether the business information or technical information is protected by law.
Secondly, the alleged infringer’s rights and interests should be identified. The source of the confidential information. People accused of trade secret infringement often argue that their trade secrets were obtained through legitimate means, so it is important to determine the origin of their information. In most cases, ascertaining the origin of information about the alleged infringer is crucial to ascertaining whether the infringer has adopted unfair means.
Again, it is necessary to confirm whether the alleged infringer adopts By unfair means. This is trueNecessary conditions for determining whether the alleged infringer has committed unfair competition. Only infringers who adopt unfair means to obtain, disclose, and use other people's business secrets will bear corresponding legal liability. Unfair means mainly include coercion, inducement, theft, etc. Other means that violate generally accepted business ethics are also considered unfair means. For those who obtain, use, or disclose business secrets through improper means, the perpetrator can be directly determined to be at fault and required to bear legal liability.
The judicial authorities examine whether the trade secret right holder has taken Confidentiality measures have two main purposes. As an inherent characteristic of trade secrets, the obligee's adoption of a certain degree of reasonable confidentiality measures for the technical or business information he possesses is an essential requirement for the information to constitute a trade secret. It is also the factual basis for judicial organs to hear cases of criminal infringement of trade secrets. At the same time, for those who have come into contact with trade secrets, the existence of confidentiality measures is the main basis for judging whether the perpetrator has a legal obligation to keep secrets, and the judicial authorities will use this to judge whether the leaker should bear corresponding legal liability.
The standards for determining confidentiality measures in the sense of criminal law are not completely equivalent to the standards in the sense of civil law. According to the relevant provisions of the civil law, as long as the obligee stipulates a general confidentiality clause in the labor contract, even if there are no other confidentiality measures, the confidentiality obligation of the party is still established. If the agreement is violated, the party shall be liable for breach of contract.
Criminal liability, as the most severe legal liability, is This method of relief is adopted when other legal responsibilities are insufficient to relieve the victim, and its punishment targets behaviors that are more serious harmful to society than general torts and other illegal activities. Therefore, the infringement of trade secrets treated as a crime should have more serious social harm than ordinary civil torts. Based on this, the identification of confidentiality measures in the sense of criminal law is, in principle, more stringent than in the sense of civil law. In addition to requiring the right holder to make general confidentiality requirements by signing a labor contract in accordance with the above provisions, it is also required to take other confidentiality measures at the same time.
Generally speaking, judicial organs should determine whether the right holder has taken confidentiality measures in the sense of criminal law from the following aspects: whether the right holder has informed The counterparty has a trade secret; whether the obligee and the counterparty have signed a contract to keep trade secrets; whether the obligee restricts others from entering places containing trade secrets; whether the obligee keeps documents containing trade secrets in special custody or prohibits them from being released.
In judicial practice, the right holder must sign a confidentiality contract If the confidentiality obligation of others is determined in a certain way or the confidentiality request has been clearly stated, comprehensive consideration should be taken and objective determination should be made. For general violations of the confidentiality system, disclosing, using or allowing others to use the business secrets in their possession will cause certain consequences to the right holder. If the perpetrator shows repentance and actively compensates for the loss, and the behavior is not harmful to society, relief can be provided through civil or other means, and criminal punishment is generally not suitable; however, the right holder has taken measures in the sense of criminal law If the perpetrator deliberately violates the confidentiality agreement and discloses, uses or allows others to use the commercial secrets in his possession, causing heavy losses to the right holder, he shall be held criminally responsible in accordance with the law.
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