Some time ago, the TV series "My First Half Life" was broadcasted, and the intricate emotional ties, working relationships and family fate between the protagonists Luo Zijun, He Han and Chen made everyone feel heartbroken.
However, after worrying, two stories in the play caught my attention, both of which revolved around the same point: protecting the trade secrets of Chen Xing Company.
Article 2 19 of China's criminal law specifically stipulates the crime of infringing on trade secrets and protects the trade secrets of the obligee.
However, compared with other crimes of infringing intellectual property rights, such as the crime of counterfeiting registered trademarks, the crime of counterfeiting patents and the crime of infringing copyright, the judicial determination of the crime of infringing trade secrets in practice is not easy. There are two main reasons:
First, companies and enterprises have not taken necessary security measures for the contents of relevant materials and documents that should belong to trade secrets in advance, which leads to the inability to determine that the infringed trade secrets are protected by law.
Second, it is impossible to accurately determine the amount of losses caused by infringement of trade secrets to right companies and enterprises.
These two stories in the TV series "My First Half Life" just correspond to these two questions.
The first story happened in 30 episodes 3 1.
In order to accompany Luo Zijun to celebrate Luo's son's birthday, He Han led Phil, an important member of his company team, to resign and took the company's secrets to another competitor company. Among them, Chen, who tried to stop Phil from leaving by secret, lamented that he and Phil were at the same level and were not qualified to let Phil sign a confidentiality agreement.
Let's make it clear here that during the period from Phil's employment in Chen Xing Company to his handling of business in Hehan team and his preparation for job-hopping, Chen Xing Company has never signed a confidentiality agreement with Phil on the company secrets and customer information he has mastered in conducting business. In the end, Phil took away the secrets and information that should have belonged to Chen Xing.
The so-called trade secrets protected by China's legal system are actually the same, that is, the definition of trade secrets in Article 10 of the Anti-Unfair Competition Law is adopted: technical information and business information that are not known to the public, can bring economic benefits to the obligee, are practical and are kept confidential by the obligee. Other elements are relatively easy to identify, but in practice, many cases of infringement of trade secrets cannot be brought to criminal judicial proceedings. The key point is that the right company did not take necessary confidentiality measures for the technologies, information and materials that affected or even affected its company's business life before being infringed, which led to its failure to be evaluated as "trade secrets" in the legal level.
Zhou Zhicheng: So, what kind of secrecy will be recognized by law and can be evaluated as a trade secret with confidentiality measures?
take for example
Classified management of general company information and business secrets, signing confidentiality agreements, password management, classified login management of confidential information, and sealing and pasting confidential signs on confidential information carriers. In our usual understanding, these protective measures, which can generally effectively prevent the disclosure of confidential information, will be evaluated as confidentiality measures. Therefore, if an enterprise wants to fully protect its business secrets, it must have this awareness and take reasonable and effective security measures actively and actively in its management.
Zhou Zhicheng, what needs to be explained here is that there are two situations that cannot be considered as taking confidentiality measures:
First, some companies say that we have conducted business training and legal education for employees, but the primary induction training and oral education obviously cannot be defined as taking confidential measures. The object of security measures is the technical information and business information that the company wants to keep confidential, not the employees themselves, so pure professional legal education cannot be regarded as taking security measures.
Second, the labor contract signed with employees has the nature of format clauses and generalized confidentiality clauses, so it is not appropriate to adopt confidentiality measures. Because employees in different positions have different scopes of handling and mastering company information, their confidentiality obligations are bound to be different, and the content of confidentiality should have relatively specific objects or at least categories, rather than abstract principles.
in addition
In today's information age and big data age, trade secrets are no longer limited to traditional contents such as formulas, drawings, customer lists, production and marketing strategies, but more presented as data information, which is updated and changed with the development of the times. Therefore, the security measures of companies and enterprises should also keep up with the trend and adopt diversified and technical means to protect them in all directions.
The second story is at the end of the play.
In retaliation for the powerful Tang Jing, Xiao Dong and Lingling leaked the internal cost data of the cooperative client company to the company's competitor Biopi. In fact, this is a typical infringement of trade secrets for Xiao Dong and Lingling. It goes without saying that even for Biobot who accepts and uses cost data, it is also an infringement of trade secrets.
Because according to the provisions of Article 2 19 of the Criminal Law, using the business secrets of the obligee obtained by others through stealing or improper means may also constitute this crime.
So some people will say, you see, the criminal law is still very strict in protecting the trade secrets of the obligee. Not only those who illegally obtain trade secrets such as theft will be punished, but even those who simply use these trade secrets will be guilty.
However, we should know that there is still a long way to go to determine that the actor's behavior belongs to infringement of trade secrets and that it constitutes a crime of infringement of trade secrets.
According to the criminal law of our country, there are both consequential and circumstantial crimes when committing a crime, but the crime of infringing on trade secrets is only consequential, that is, the act of infringing on trade secrets must have the result of causing great losses to the owner of trade secrets, and it is precisely this that is difficult to identify in practice.
So why is it so difficult to prove?
Zhou Zhicheng cited the example of 1.
A factory developed an embroidery process on 20 10. The silk scarves produced by this process sold for 1 10,000 yuan in the first quarter, and then the secret of this process was stolen by Factory B.. In the second quarter, the silk scarves produced by factory A sold for 500,000 yuan, while those produced by factory B with the same technology sold for 1 10,000 yuan. In addition, in the second quarter, a third factory with higher-tech silk scarves appeared in the market. Now I want to ask how much the losses caused by the infringement of their trade secrets by Factory A and Factory B are? I don't need to say too much, everyone may have found the problem. A factory sells 500 thousand less, which can't be regarded as a loss of a factory, because similar products with higher technology come in, and many people buy scarves from factory C. You can't prove that there is a causal relationship in criminal law between the underpayment of 500,000 yuan by A factory and the infringement of trade secrets by B factory.
So how much of it is the loss caused to a factory by infringement of trade secrets? There is no clear calculation standard and basis. In this era of explosive development of technology, similar products of new technology are updated very quickly, so this situation is very common and realistic.
Zhou Zhicheng gave a second example.
On 20 1 1, the information of the internal customer list of company A was stolen by others and sold to company B which operated similar business. In 20 10, these customers bought 500,000 products from company a, and in 20 1 1 year, these customers continued to buy 500,000 products from company a, and these same customers bought 300,000 products from company B. What is the loss caused by B company's infringement of its trade secrets now? There will be problems. Judging from the amount of products purchased, Company A seems to have no loss, but the purchasing power of the same customers in different years is different (normally it is increasing year by year), so we will think that without the behavior of Company B, these customers' purchasing power in this field is likely to exceed 20 1 1 year by 300,000, so Company A will definitely lose money.
But the question is how to calculate the loss at this time? There is no clear calculation standard and basis. The situation represented by this example is still universal and realistic.
There are too many examples to enumerate. However, these situations all point to the same problem. Under the situation that time, market and economy will not stop and the external environment of the market will change rapidly, we have not yet established a scientific standard to calculate the losses caused by infringement of trade secrets, which is a dilemma we encounter in dealing with such criminal acts at present (of course, if you do not use reasonable standards to calculate the losses, it is another matter).
someone says that
The judicial interpretation also stipulates a clause to convict according to the amount of illegal income from infringement of trade secrets.
The first half of my life
Yes, some cases can be handled according to this interpretation clause, but in My First Half of Life, Lingling and Xiaodong deliberately gave their business secrets to their rival companies in order to get back at Tang Jing. Apart from spiritual pleasure, they don't have any illegal economic income, which is probably the reason why Lingling can return to her family after admitting her mistake.
Moreover, in fact, it is not easy to prove that the infringer's economic income must be his illegal income from infringing trade secrets. It may also be suggested that the value of the research and development and protection cost of the right holder's trade secrets can be directly regarded as the amount of losses caused by the infringement of trade secrets, which I think is not desirable:
On the one hand, only trade secrets such as technology, design, formula and technology have the so-called R&D cost, but there is no R&D link such as customer list and business information.
On the other hand, infringing on business secrets is not like stealing mobile phones. You take it away, it's gone. If a trade secret is stolen, it is actually leaked, and the obligee will not lose this trade secret information. The right company can still be used by itself.
Therefore, the cost of research, development and protection of trade secrets cannot be counted as the property loss of the right company.
Through these two short stories "My First Half Life"
It just reflects two difficult problems in the process of criminal justice cracking down on crimes against trade secrets, and reminds us again: under the increasingly fierce market economy situation, should enterprises take more active, positive and effective measures to protect technical information and business information that should be called trade secrets? In addition, whether the legislation and judicial interpretation of the crime of infringing trade secrets should also be adjusted to meet the current situation and needs of trade secret protection, after all, the lag of law is relative to the development of social life facts, not permanent.