Modified background
The Anti-Unfair Competition Law is the most important law to protect trade secrets in China. The construction and revision of trade secret protection system not only meets the actual needs of China's economic development, but also is often promoted and influenced by Sino-US intellectual property negotiations.
1992, the Chinese and American governments signed the Memorandum of Understanding on the Protection of Intellectual Property Rights [1], requesting the China government to protect trade secrets through legislation and stop unfair competition. 1September, 1993, the Anti-Unfair Competition Law was promulgated, and its tenth article stipulated the rules for the protection of trade secrets, which formally established China's trade secret protection system.
20 17, 1 1 year1October, the first revision of the Law on Anti-Unfair Competition. However, it was revised again in less than two years, and it was only aimed at the trade secret clauses, which was not common at the legislative level. China's current policy of optimizing business environment is of course an important reason for this revision, but it is undeniable that Sino-US trade negotiations have once again had an impact on the evolution of China's trade secret protection system.
The United States has always believed that China's protection of trade secrets is insufficient. 2065438+In August 2007, US President Trump signed an administrative memorandum authorizing trade representatives to conduct a 30 1 investigation on China, which opened the curtain of Sino-US trade war. In the seventh round of Sino-US trade negotiations just concluded in February 2009, China and the United States made substantial progress on specific issues such as technology transfer and intellectual property protection. This anti-French amendment, especially aimed at improving the protection of trade secrets, can be regarded as an important measure to deal with Sino-US trade friction.
Two. Overview of revised contents
(A) improved the means of infringing trade secrets.
Paragraph 1 of Article 9 adds "electronic intrusion" as one of the improper means to obtain other people's business secrets.
The author understands that the change from "breach of agreement" in the third paragraph of Article 9 to "breach of confidentiality obligation" aims to bring the confidentiality obligation stipulated by law into the scope of protection.
Add abetting and aiding infringement in the fourth paragraph of Article 9.
(two) expand the scope of the subject of infringement of trade secrets.
(C) expanding the extension of the definition of trade secrets
(4) Strengthen the protection of trade secrets.
Increase the punitive damages system.
Significantly increase the statutory compensation ceiling and the amount of administrative fines.
(five) the new rules of evidence for infringement of trade secrets.
Interpretation of the third revision
The revision of the Anti-Unfair Competition Law reflects the intention of expanding the scope of protection of trade secrets and improving the protection of trade secrets. The revised Article 9 expands the means of improperly obtaining trade secrets, increases the provisions of statutory confidentiality obligations, expands the scope of potential infringement subjects, and increases the provisions of aiding and abetting infringement, including the infringement of unincorporated organizations other than natural persons, legal persons and operators as infringement subjects; Articles 17 and 21 increase punitive damages and greatly increase the maximum amount of statutory compensation and administrative fines, which intuitively increases the protection of trade secrets; Article 32 has added a clause on the allocation of burden of proof specifically applicable to trade secret cases, which obviously lightens the burden of proof of the obligee and is conducive to the development of rights protection litigation by the obligee.
(A) to increase the intensity of "electronic intrusion" infringement to meet the requirements of the Internet age.
With the advent of the Internet era and the increasing popularity of digital office, more and more business secrets are manifested in electronic data stored in computer systems, and the ways of stealing business secrets are also being refurbished, including illegally entering other people's computer systems by hacking and implanting computer viruses. Before the amendment, obtaining trade secrets through the above means can only be interpreted as "other improper means" in Article 9, and it can be directly applied after the amendment to avoid disputes. However, the law does not clearly define what is "electronic intrusion". The crime of illegally obtaining computer information system data stipulated in the second paragraph of Article 285 of the Criminal Law [2] also takes "intrusion" as a constituent element of the crime. Before giving a detailed explanation of "electronic intrusion" in the supporting judicial interpretation, we might as well refer to this charge and make some understanding of the meaning of "intrusion" here.
The object of "intrusion" stipulated in the crime of illegally obtaining computer information system data is computer systems that do not belong to national security, national defense security and cutting-edge science and technology, otherwise it will constitute the crime of illegally invading computer information systems stipulated in the first paragraph of Article 285. For the "electronic intrusion" stipulated in the Anti-Unfair Competition Law, the objects of invasion are not subject to the above restrictions, and should include all electronic carriers that store other people's business secret information, including digital office systems, servers, mailboxes, cloud disks, application accounts, etc.
This intrusion should be unauthorized or beyond the authority of the intruder. Unauthorized or beyond authorization is not only the proper meaning of "intrusion", but also related to the confidentiality measures taken by the right holders of trade secrets. If the obligee does not require, manage or restrict the identity and authority of the person who enters the carrier, then the behavior of the actor entering the carrier does not constitute an electronic invasion as stipulated in this article, and the information in the carrier may not constitute a trade secret because no confidentiality measures are taken.
Whether the actor enjoys the authority to enter the electronic carrier or exceeds the authority should be comprehensively judged according to his identity, job responsibilities, labor contract, confidentiality agreement, company management system, and whether he has received the authorization document to enter the electronic carrier. If a legally authorized person enters the system and sends the data in the system that may constitute a trade secret to others who have no right to obtain the data, it may constitute an act of illegally disclosing the trade secret in violation of the confidentiality obligation or confidentiality requirement stipulated in Item (3) of Article 9, provided that the confidentiality requirement exists or the person has the confidentiality obligation. The above situation also exists in the crime of illegally invading computer information systems.