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SUPREME PEOPLE'S COURT ON HEARING CIVIL CASES OF INFRINGEMENT OF TRADE SECRETSExplanation of some issues in the application of law(Draft for comments)MACHINE TRANSLATION PROVIDE FOR CONVENIENCE AND SPEEDNO REPRESENTATION IS MADE AS TO ACCURACY　　 In order to correctly hear civil cases of infringement of trade secret disputes, this Interpretation has been formulated in accordance with relevant laws and regulations such as the “Law of the People’s Republic of China on Anti-Unfair Competition” and the “Civil Procedure Law of the People’s Republic of China”, in conjunction with the trial.Article 1 The right holder shall clarify the specific content of the trade secret claimed before the conclusion of the first-instance court debate. If it is not clear, the people's court may rule to dismiss the prosecution; if only the part is clear, it may decide to dismiss the claim concerning the unclear part.If the right holder requests to change or increase the specific content of the trade secret he claims before the end of the debate in the court of first instance, the people's court may permit it. If the right holder separately claims in the second instance procedure that the specific content of the trade secret is not clear in the first instance, if the other party agrees to be tried by the people’s court of second instance, the people’s court of second instance may make a judgment together.If the respondent infringer requests that the right holder clarify the specific content of the trade secret claimed, and then conduct evidence exchange and cross-examination, the people's court shall grant permission.Article 2 If the trade secret claimed by the right holder is not generally known by the relevant personnel in the field and is not easily accessible when the infringing act is alleged, the people’s court shall determine that it belongs to the term referred to in Article 9, paragraph 4 of the Anti-Unfair Competition Law Not known to the public.If the information known to the public is collated and improved, new information and information published by publications or published through the media, exhibitions, and networks comply with the provisions of the preceding paragraph, the people’s court shall determine that the information is not publicly available. Know.Article 3 If the trade secret claimed by the right holder has real or potential market value and can bring about a competitive advantage, the people's court shall determine it as having commercial value as mentioned in Article 9, paragraph 4 of the Anti-Unfair Competition Law.If the staged results formed in the production and operation activities conform to the provisions of the preceding paragraph, the people's court shall determine that the results have commercial value.Article 4 Structure, raw materials, components, formulas, materials, styles, processes, methods or their steps, algorithms, data, computer programs and related documents related to science and technology may constitute the ninth anti-unfair competition law The technical information referred to in Article 4Creativity, management, marketing, finance, planning, samples, bidding materials, data, customer information, etc. related to business activities may constitute business information as mentioned in Article 9, paragraph 4 of the Anti-Unfair Competition Law.Article 5 The customer information formed after the processing and processing of information such as the name, address, contact information, trading habits, transaction content, and specific needs of specific customers may constitute what is referred to in Article 9, Paragraph 4 of the Anti-Unfair Competition Law Business information.The parties only claim that the information of the specific customer is a trade secret based on the contract, invoice, document, voucher, etc. with the specific customer or only on the basis of maintaining a long-term stable transaction relationship with the specific customer, the People's Court will not support it.Article 6 The right holder shall provide evidence to prove the corresponding confidentiality measures taken before the alleged infringement occurs. Confidentiality measures should be compatible with the commercial value and importance of trade secrets.Where the commercial secrets are shared, each co-owner shall take corresponding confidential measures.For the determination of the corresponding secrecy measures, the people's court may consider the following factors comprehensively:　　 (1) The nature of the commercial secret carrier;　　 (2) The right holder's willingness to keep secret;　　 (3) Recognition of confidentiality measures;　　 (4) The degree of matching of confidentiality measures with trade secrets;　　 (5) How easy it is for others to obtain trade secrets through improper means.Article 7 The corresponding confidentiality measures taken by the right holder may include the following situations:　　 (1) Sign a confidentiality agreement or stipulate confidentiality obligations in the contract;　　 (2) Put forward confidentiality requirements through articles of association, regulations, training, etc.;　　 (3) Put forward confidentiality requirements for suppliers, customers, visitors, etc. who can access and obtain trade secrets;　　 (4) To distinguish and manage trade secrets and their carriers by means of marking, classification, isolation, and sealing;　　 (5) Take measures to prohibit or restrict access, storage and copying of computer equipment, electronic equipment, network equipment, storage equipment, software, etc. that can access and obtain trade secrets;　　 (6) Require the retired employee to register, return, delete, destroy the commercial secrets and their carriers that they contacted or obtained, and continue to undertake the obligation of confidentiality.Article 8 The right holder submits preliminary evidence to prove that the corresponding confidentiality measures have been taken against the claimed trade secret, and the alleged infringer has channels or opportunities to obtain the commercial secret. The trade secret has been known to the public or there is no evidence of infringement of the trade secret.If the alleged infringer claims that it obtained the alleged infringement information through research and development, transfer, licensing, reverse engineering, succession, etc., it should provide proof.Article 9 The employees and ex-employees referred to in Article 9, Paragraph 3 of the Unfair Competition Law include the management and management personnel of legal persons and unincorporated organizations, and other personnel with labor relations and personnel relations.Article 10 The confidentiality obligations referred to in Article 9 of the Anti-Unfair Competition Law include the confidentiality obligations undertaken by the parties in accordance with the law or the contract during the conclusion and execution of the contract and after the contract is cancelled or terminated.The obligation of confidentiality is not stipulated in the contract, but according to the principle of good faith and the nature and purpose of the contract, trading habits, contracting process, etc., the alleged infringer knows or should know that the information obtained during the contract conclusion and performance belongs to the owner’s business If it is secret, the people's court may determine that it constitutes the obligation of confidentiality as mentioned in Article 9, Paragraph 1 of the Anti-Unfair Competition Law.Article 11: If the accused infringer violates the law or obviously violates the generally accepted business rules and obtains the right holder’s business secrets, the people’s court shall determine that it belongs to other improprieties as mentioned in Article 9, Paragraph 1 of the Anti-Unfair Competition Law Means to obtain the trade secret of the right holder.Article 12 After obtaining the trade secret legally authorized by the right holder, if the trade secret is obtained by others due to intentional or gross negligence in the custody and use of the trade secret, the people’s court shall determine that it belongs to Article 9 of the Anti-Unfair Competition Law 'S disclosure of the business secrets it holds.Article 13 If the people's court determines whether an employee or a former employee has a channel or opportunity to obtain the trade secret claimed by the right holder, he may consider the following factors related to it:　　 (1) Duties, duties and authorities;　　 (2) The job or the task assigned by the unit;　　 (3) The specific circumstances of participation in production and business activities related to trade secrets;　　 (4) Whether or have been able to access, contact, obtain, control, store, store, and copy commercial secrets and their carriers;　　 (5) Other factors to be considered.Article 14 If there is no substantive difference between the alleged infringing information and the commercial secret claimed by the right holder, and there is no substantial impact on the use of the commercial secret, the people's court may determine that the alleged infringing information and the commercial secret belong to anti-unfair competition The second paragraph of Article 32 of the Law is essentially the same.　　When the people's court determines whether it is substantially the same, it shall comprehensively consider the following factors:　　 (1) The degree of similarities and differences between the infringed information and the commercial secret;　　 (2) Is it easy for the relevant personnel in the field to think of this difference when the alleged infringement occurs;　　 (3) Information about trade secrets in the public domain;　　 (4) Other factors to be considered. Article 15 Where commercial secrets are used directly or modified for production and business activities or the related production and business activities are adjusted according to the commercial secrets, the people's court shall determine that they belong to the use of commercial secrets as mentioned in Article 9 of the Anti-Unfair Competition Law. Article 16 If a natural person, legal person or unincorporated organization other than the operator violates commercial secrets, and the right holder claims to determine the civil liability of the infringer based on Article 17 of the Anti-Unfair Competition Law, the people's court shall support it.Employees and former employees violate the agreement on keeping commercial secrets and infringe on the business secrets claimed by the right holders, the right holders may choose to claim liability for breach of contract or tort liability according to law.Article 17 If a party requests the suspension of the trial of a civil case involving a trade secret infringement crime involving the same accused infringing act, the people's court shall generally support it, but the information requested by the right holder is not Exceptions are those that constitute business secrets or that the evidence in the case is sufficient to determine that the infringer has not infringed on the business secrets.Article 18 The people's courts that hear civil cases of infringements on trade secrets shall be examined and verified in accordance with the law on the evidence formed in the criminal proceedings for infringement of trade secrets.The evidence kept by the public security organ, procuratorial organ, or other people's court that is related to the infringement being sued, the parties and their entrusted litigation agents cannot collect it for objective reasons, and the application for investigation and collection by the people's court should be permitted, but may affect Except for ongoing criminal proceedings.Article 19 In order to protect public interest and prevent criminal acts, the respondent infringer discloses relevant commercial secrets to administrative authorities and judicial organs, and the right holder claims that it bears tort liability. The people's court generally does not support it.Article 20 If the respondent attempts to or has disclosed, used or allowed others to use the business secrets claimed by the right holder, and the failure to take action preservation measures will make the judgment difficult to execute or cause other damages to the party, the people’s court may provide a guarantee to the right holder Later ruled to take action preservation measures.The circumstances specified in the preceding paragraph belong to the circumstances stated in Articles 100 and 101 of the Civil Procedure Law, the people's court shall make a ruling within 48 hours.Article 21 If the right holder applies for behavior preservation measures, he shall clarify the specific content of the trade secrets claimed at the time of application, and provide evidence to prove that the trade secrets have taken corresponding security measures.Article 22 If the respondent infringer proves that the information requested by the right holder does not belong to commercial secrets or there is no violation of commercial secrets, the people's court shall rule on the protection of the act in accordance with the request of the respondent infringer.The trade secrets caused by the infringement are known to the public, and if the measures to cancel the preservation of the conduct are not enough to eliminate the unfair competitive advantage obtained by the infringer due to the infringement, the people’s court may not release the preservation.Article 23 If the right holder requests the infringer to return or destroy the commercial secret carrier and clear the commercial secret information under its control, the people's court shall generally support it.Article 24 If the technical information is part of the owner’s technical plan or the product that infringes trade secrets is a part of another product, it should be based on the proportion and role of the infringed technical information in the entire technical plan or the infringement of trade secrets. Factors such as the value of the product itself and its proportion and role in realizing the profits of the entire finished product, reasonably determine the amount of infringement compensation. If business secrets are business information, the amount of infringement compensation shall be reasonably determined according to the effect of the business information on the profits obtained from the violation of business secrets.If the right holder requests to determine the amount of infringement compensation with reference to a reasonable multiple of the license fee for trade secrets, the people’s court may determine such factors as the nature, content, actual performance of the license, the infringer’s fault, and the nature and circumstances of the infringement.Article 25 If the right holder, in accordance with the effective criminal judgement, determines the amount of damages or illegal gains resulting from the violation of business secrets, in a civil case of disputes over violations of business secrets, the people’s court Should be reviewed.Article 26. In cases where the right holder has provided preliminary evidence of the infringer’s interest in the infringement, and the books and materials related to the infringement of trade secrets are mainly controlled by the infringer, the people’s court may order the infringer to provide such information. Account books, information. If the infringer refuses to provide or does not provide the information without justifiable reasons, the people's court may, based on the claim of the right holder and the evidence on the record, determine the benefit obtained by the infringer from the infringement.Article 27 If the parties or outsiders apply in writing to the people's court to take confidential measures for evidence and materials involving the business secrets of the parties or outsiders, the people's court shall take the necessary confidentiality measures during the litigation activities such as evidence exchange, cross-examination, and court trial .By breaching the confidentiality measures stipulated in the preceding paragraph, the parties unauthorized disclosure of trade secrets or use outside of litigation activities or allow others to use the trade secrets contacted and obtained in litigation shall bear tort liability. In cases that constitute the circumstances specified in Article 111 of the Civil Procedure Law, the people's court may take compulsory measures according to law.Article 28 Civil cases of first-infringement disputes involving business secrets shall be governed by the intermediate people's courts located in the provinces, autonomous regions and municipalities directly under the Central Government and the intermediate people's courts designated by the Supreme People's Court, unless otherwise provided by laws and judicial interpretations.Article 29 Civil cases of first-infringement disputes involving trade secrets shall be under the jurisdiction of the people's courts where the defendant's infringement is committed or the defendant's domicile is located.If the accused infringer infringes on commercial secrets by means of information network such as electronic intrusion, the people’s court shall be in the place of the terminal or server where the accused infringing act is carried out, the terminal or server where the commercial secret is kept or the defendant’s domicile.If the place where the alleged infringement is carried out, the location of the server, and the place of the defendant’s residence specified in the first and second paragraphs of this article is difficult to determine, the people’s court at the place where the right holder resides shall have jurisdiction.Article 30 The people's court shall hear civil cases involving foreign-related violations of trade secrets, and shall determine the attribution and content, torts, and tort liability of the trade secrets claimed by the right holder in accordance with the laws of the People's Republic of China.Article 31 The people's courts shall hear the law at the time when the alleged infringement occurs when hearing civil cases of disputes over infringement of business secrets. If the alleged infringement occurred before the amendment of the law and continued after the amendment of the law, the amended law shall apply.Article 32 If the relevant judicial interpretation previously issued by the Supreme People's Court is inconsistent with this interpretation, this interpretation shall prevail.Article 33 This interpretation shall come into force on the year, month, and day. ................
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