—Introduction to the Security Measures by the Courts in China
Recently, a judge from the Shanghai No.2 Intermediate People’s Court has published an article (in Chinese) Trial Experiences in Trade secret Infringement Cases (the article), and the Bridge IP Law Commentary has already introduce how to apply for evidence preservation in trade secret infringement cases in China. Today we would like to continuously introduce another part of the Article relating the security measures taken by the people’s courts in preventing the parties concerned in the proceeding from discourse of trade secrets.
The Article 47 of the Provision of the China Supreme People’s Court on Evidence in Civil Proceedings provides that the evidences shall be presented in court and cross-examined by the parties concerned. Any unexamined evidences could not be adopted as the trial reference. And the trade secret cases shall also be covered by this rule. However, due to the particularity of the trade secret cases, namely the confidence and the non-exoteric, which lays the difficult for the court in applying such applying the rules as mentioned above.
In the view of the article, the exoteric cross-examination has already made some trade secret owner choose to let alone the infringement after weighing the losses possibly caused due to the full publicity of trade secrets after the lawsuit and the losses from the continuous infringement when abandoning the lawsuit. Similarly, the defendants may have to disclose his own trade secret to prove the trade secret it uses is different from that the plaintiff claims. In such situation, the court insists in the principle that the evidences must be cross-examined meanwhile the legitimate interests of both the defendant and plaintiff shall be taken into account. In practice, the court takes detail measures to prevent disclosure of trade secrets, and the following is the abstract of the part, to strength the sense of confidentiality of the personnel contacting secret, of the article.
According to the article, to avoid disclosure of trade secret in lawsuits, the courts shall strictly demand the staffs participating in trial (not only the judges but also anyone who is able to contact the trade secret including the parties concerned in lawsuit or their legal representative, agents, witnesses, experts, translators and other professionals applied by the parties to explain some special problems relating cases) (the “personnel contacting secret”) sign a Non-disclosure Agreement, which shall mainly contain the regulations that the personnel contacting secret shall strictly obey the laws related, take the obligation to keep any trade secrets known in the proceeding unconditionally and not to spread, disclose, use or permit others to use, except for the purpose of trial. And such obligations won’t terminate when the lawsuit is concluded, while until official disclosure of the confidential information, otherwise anyone violating the obligation shall take the liability.
We think the measure described above is effective. As the Article 66 of the Civil Procedure Law of People’s Republic of China (“Civil Procedure Law”), the evidence involving the state secrets, trade secrets and personal privacy shall be kept confidential. And it shall not be presently in an open hearing if such presentation is necessary. It means the evidences involve trade secret won’t be presented publicly in court, with it only disclosed to the staff participate in the hearing, therefore, the strengthening of the confidentiality consciousness of the staff involved in the case could decrease the possibility of trade secret release from the origin.
Additionally, the article also introduces other security measures taken by the courts in practice, including the principle of reciprocity in presenting evidences, the principle of presenting evidences step by step, not to present the preserved materials to the plaintiff temporarily for the avoidance of the plaintiff to adjust their own evidences, to maintain part evidences unexchanged, to admit the parties concerned in proceedings to read the case file in the court, the principle of limited publicity of judgment.
In our opinion, the parties concerned in trade secret infringement cases shall believe the courts, as the courts will balance the legitimate interests of the parties and take reasonably measures to ensure the trade secrets of the parties concerned not to be disclosed in lawsuits.
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Author: Ms. Chen Danhong
Paralegal of DeBund Law Offices
Co-author: Mr. You Yunting
Founder & Editor-in-Chief of Bridge IP Law Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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