On the other hand, any transaction contract or agreement involving business secrets of enterprises should provide "confidentiality clauses". The so-called "confidentiality clause" refers to the additional confidentiality obligation to the other party in the form of a contract. This duty of confidentiality is usually reciprocal. If the other party to the contract divulges the business secrets we have obtained due to the signing and performance of the contract, it constitutes a breach of contract and needs to bear the corresponding liability for breach of contract. Common contracts requiring confidentiality clauses include: sales contracts, service contracts, intermediary contracts, processing contracts, etc. Standard confidentiality clauses (or independent confidentiality agreements) shall include the following contents:
(1) clearly indicate the scope of business secrets involved in the contract that need to be kept confidential; (2) The other party to the contract and any of its employees and agents are bound by the confidentiality clause; (3) Without permission, the bound confidentiality obligor shall not disclose the business secrets to any third party or use them for purposes other than the purpose of this contract; (4) The bound confidentiality obligor shall not take the materials, documents and articles containing confidential information out of the confidential area; (5) The confidentiality obligor shall not involve the commercial secrets agreed in the contract when accepting foreign visits or communicating with any third party; (6) Irrelevant employees are not allowed to contact or understand business secrets; (7) After the contract is terminated, the confidential information shall be returned; (8) The confidentiality period shall remain valid after the termination of the contract; (nine) in violation of confidentiality obligations, it shall bear clear liability for breach of contract. It is worth noting that the focus of trade secret protection lies within the enterprise. Enterprise employees, especially technicians and managers who have a lot of enterprise information, are inevitably talents that other enterprises are scrambling to "dig". The leakage of business secrets caused by employees' resignation or dismissal is everywhere in real life. Therefore, in addition to formulating a confidentiality system and publicizing employees, it is also the main confidentiality measure that enterprises should take to require employees to sign confidentiality clauses or agreements when signing labor contracts. Attaching confidentiality clauses or confidentiality agreements to employees' labor contracts to enhance employees' confidentiality awareness and obligations can effectively prevent employees from voluntarily revealing business secrets to other rivals. The confidentiality clauses and confidentiality agreements signed with employees should be specific, and it is necessary to determine the scope of business secrets and confidentiality procedures that employees need to perform, and limit some behaviors that employees may disclose secrets through clauses or agreements. For example, the sales supervisor of an enterprise attended a paid seminar in his spare time and introduced the sales experience and technology of his industry to the participants at the meeting. Because the labor contract signed between the enterprise and the sales director does not clearly stipulate the scope of trade secrets and the security measures that need attention, the enterprise is very passive in investigating the responsibility of the sales director.
Foreign experience and judicial precedents show that the job-hopping behavior of employees is the most important reason for the disclosure of trade secrets. According to the survey, multinational companies in China believe that the shortage of human resources in China is the primary factor affecting their investment, and they usually solve this problem by "poaching people" from their competitors. Frequent flow of talents is also common in domestic business circles. Because the general rule is that the higher the position, the higher the brain drain rate, so the loss of business secrets caused by brain drain is also very serious. Although enterprises usually require signing confidentiality clauses or confidentiality agreements when signing contracts with employees, this only requires employees to have confidentiality obligations when they work in the enterprise, which is not enough for the constraints of employees after job-hopping. In Britain, the United States and other countries, there is a concept called "horticultural leave", which means that enterprises give employees some compensation after their employees quit their jobs or are dismissed, and require employees not to get jobs in other positions that other companies or enterprises think are inappropriate within the agreed time limit, which is similar to paid leave given by enterprises. Legally speaking, we call such a clause "non-competition".
1996, the Ministry of Labor issued the Notice on Several Issues Concerning the Mobility of Employees in Enterprises. Article 2 of the notice stipulates:
"If the employer and the employee who knows the business secrets agree on matters related to keeping the business secrets in the labor contract, they may agree to adjust their jobs and change the relevant contents in the labor contract within a certain period of time (not more than six months) before the labor contract is terminated or after the employee proposes to terminate the labor contract; The employing unit may also stipulate that a worker who knows the trade secrets shall not be employed by other employing units that produce similar products or operate similar businesses and have a competitive relationship within a certain period of time (not exceeding three years) after the termination or dissolution of the labor contract, nor shall he produce similar products or operate similar businesses with the original unit on his own, but the employing unit shall give certain economic compensation to the workers. " This provision legally confirms the legality of the "non-competition" clause in the labor contract, which has been adopted by most enterprises.
The application of the "non-competition" clause should be targeted, and it is usually only used for senior staff who are exposed to business secrets of enterprises, such as managers, technicians, financial personnel, salespeople, secretaries, security personnel, etc. Security guards are actually more exposed to trade secrets than any other employees, but they are often ignored by enterprises. It is unrealistic and unnecessary to ask all employees to "prohibit competition". In the content arrangement of the "non-competition" clause, it is generally necessary to restrict the following behaviors of employees: (1) setting up a company to compete with enterprises; (2) Competitors working for this enterprise; (3) Part-time job in a competitive enterprise; (4) Inducing other employees of the enterprise to resign; (5) attracting customers from enterprises; (6) Other behaviors that compete with enterprises after leaving the company. However, the "non-competition" clause is by no means a magic weapon for enterprises, and enterprises must balance the contradiction between employees' employment rights and confidentiality obligations when applying the "non-competition" clause. First of all, enterprises must give full economic compensation to employees who are prohibited from competing. Suppose the salary of an enterprise employee is 5000 yuan. If the enterprise requires the employee to undertake the obligation of "non-competition", the compensation given is less than 5,000 yuan, which is inappropriate. Secondly, enterprises should not restrict fair competition. The technical personnel of an enterprise have developed a new technology by themselves and put it into production after leaving their jobs, which may cause competition to the enterprise. However, this kind of competition is beneficial to the public's interests and is generally supported by the law. Enterprises cannot prohibit this kind of competition at will. In addition, because the right to work is a right endowed by the Constitution and the situation of trade secrets is very complicated, enterprises should not unreasonably restrict employees' employment rights when applying the "non-competition" clause. For example, enterprises generally cannot restrict financial personnel from working as financial personnel in other enterprises after leaving their posts. Another example is that for non-commercial secrets or commercial secrets that have been made public, enterprises can no longer require employees to undertake the obligation of "non-competition". In short, enterprises should carefully consider the employment rights of employees when applying the "non-competition" clause.
Above, we have analyzed various measures taken by enterprises to protect trade secrets, mainly focusing on their own systems and contractual relations. However, once the business secrets of enterprises are infringed, they often need to be solved through judicial channels. Although the enterprise may have signed corresponding confidentiality clauses or confidentiality agreements with the other party to the contract or its own employees, if the enterprise cannot prove the establishment of trade secrets and the existence of infringement, it will not win the case. 1996, Shanghai Lansheng Co., Ltd. sued the court for infringing its trade secrets. The case is typical: an employee of Lansheng Company resigned and worked for another company. In the name of the new company, the employee wrote to customers of Lansheng Company, requesting to establish business relations, and quoted a lower price for similar products of Lansheng Company than Lansheng Company. Later, some customers of Lansheng Company interrupted their business dealings with Lansheng Company. The court finally ruled that the employee and his new company violated the trade secrets of Lansheng Company. The court held that Lansheng Company's customer list and quotation belong to the company's valuable business information, and there is evidence to prove that Lansheng Company has formulated a company secrecy system, conducted necessary secrecy education for employees, and made clear the scope of business secrets and secrecy measures. However, the employee used the trade secrets of Lansheng Company in the competition with Lansheng Company, and its quotation was less targeted than Lansheng Company, which led to the business interruption with Lansheng Company's customers. These acts constitute an infringement on the business secrets of Lansheng Company and belong to unfair competition. This case reminds us that any enterprise that maintains trade secrets should provide evidence of the establishment of trade secrets, that is, whether the constituent elements of trade secrets are complete or not. At this time, it is very important to improve the internal security system and measures of enterprises. At the same time, enterprises should also collect evidence as evidence for the infringement of trade secrets, because our laws only support the actual damages in principle, and the obligee should prove that the damages did occur and have a causal relationship with the infringement.
The protection of trade secrets is a very important and complicated work. Before the promulgation of China's trade secret protection law, enterprises should make use of the provisions of existing laws and regulations, formulate corresponding enterprise secrecy systems and measures according to their own conditions, formulate and improve confidentiality clauses in foreign contracts and labor contracts signed with employees, and protect their own trade secrets to the maximum extent.