How to correctly identify confidentiality measures in the crime of infringement of trade secrets
Generally speaking, judicial organs should consider the following aspects: Determine whether the right holder has taken confidentiality measures in the sense of criminal law: whether the right holder has informed the counterparty of the existence of trade secrets; whether the right holder and the counterparty have signed a contract to keep trade secrets; whether the right holder has restricted others from entering places containing trade secrets; rights Whether documents containing business secrets should be kept under special custody or prohibited from being distributed.
In judicial practice, the right holder must sign a confidentiality agreement If the confidentiality obligations of others are determined in the form of a contract or if confidentiality requirements have been clearly stated, comprehensive considerations should be made and objective determination should be made. For general violations of the confidentiality system, disclosure, use or allowing others to use commercial secrets in one's possession, causing certain economic losses to the right holder, but the perpetrator shows repentance and actively compensates for the losses, and the behavior is not harmful to society. , relief can be provided through civil or other channels, and criminal penalties are generally not suitable; however, for business secrets for which the right holder has taken confidentiality measures in the sense of criminal law, the perpetrator deliberately violates the confidentiality agreement and discloses, uses or allows others to use the business secrets. If the commercial secrets in their possession cause heavy losses to the right holder, they shall be held criminally responsible in accordance with the law.
"Anti-Unfair Competition Law of the People's Republic of China"
Article 9 Operators shall not commit the following acts of infringement of trade secrets:
(1) Obtaining the right holder’s trade secrets through theft, bribery, fraud, coercion, electronic intrusion or other improper means;
(2) Disclosing, using or allowing others to use the right holder’s business secrets obtained by means of the previous paragraph ;
(3) Breach of confidentiality obligations or rights disclose, use or allow others to use the trade secrets in their possession;
(4) Instigate, induce, or help others to violate confidentiality obligations or violate the obligee's requirements to keep business secrets, and obtain, disclose, use, or allow others to use the obligee's business secrets.
Other natural persons, legal persons and non-operators other than operators Any legal person organization that commits illegal acts listed in the preceding paragraph shall be deemed to have infringed upon business secrets.
The third party knowingly or should have known that an employee, former employee, or other unit or individual of the right holder of the trade secret committed the violation listed in paragraph 1 of this articleIf a trade secret is obtained, disclosed, used or allowed to be used by others despite illegal conduct, the trade secret shall be deemed to have been infringed upon.
Trade secrets referred to in this Law refer to Technical information, business information and other commercial information that is not known to the public, has commercial value and the rights holder has taken corresponding confidentiality measures.
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