By Albert Chen

The most watched dispute between Baidu (NASDAQ: BIDU) and Chinese Writers Alliance (the “Alliance”) is heard on 11^th of October in Beijing No.2 Intermediate People’s Court. That lawsuit is filed following the battle against Baidu by the Alliance. Before the hearing on 11^th, Apple applied to the court for the hearing in camera with the claim that the case is with trade secret related. After the consideration by the court, such an application was refused by the judge, yet it still decided the procedure may switch into be in private when one the interrogation involves the business secret. In today’s post, you may see our analysis on the “lawsuit in camera” in China.

I. When could apply for the lawsuit in camera?

1. The lawsuit in camera as statutory demanded and on application

For the legal regulations on the lawsuit in camera, they are mainly provided in Article 120 of Civil Procedure Law:

“Civil cases in a people’s court shall be heard in public, except for those that involve State secrets or personal privacy of individuals or otherwise provided for by law.

A divorce case or a case involving trade secrets may not be heard in public if the party so requests.”

And that clause is adopted in the newly amended procedure law in 2012.

It is not difficult to conclude that the lawsuit in camera could be divided in to statutory one and the one on application.

The “statutory lawsuit in camera” mainly refers to those lawsuits with state secret or privacy involved, or any other circumstances regulated in law. Such lawsuit-in-camera will be judged by the court actively when detaining the legal circumstances. Then could the lawsuit parties file the application for private hearing when no such a decision is made by the court spontaneously? In my opinion, the answer shall be YES. Despite the common understanding that such decision shall be made initiatively made by the court, since no limitation has been set on the initiation of the procedure, and considering the lawsuit-in-camera “shall” be hereby taken, the private hearing procedure could be started either on the application from the participant of the lawsuit or on the spontaneous decision by the court.

The lawsuit-in-camera on application mainly applies to those concerning divorce or trade secret. And for these cases, the court usually chooses to first stand aside to the decision on the start of private hearing until the application by the litigants. And since it is to the consideration of the court to decide the application, it could be either an approval or a denial. In practices, as far as I know, most such applications in divorces briefs will be approved. Yet the situation is quite different for the cases argued over trade secrets, for the court would first judge are the information involved is included in legal concept of trade secret with the reference to the legal regulation in Several Opinions on the Application of Chinese Civil Procedure Law by Supreme People’s Court that:

“The trademark secret shall refer to the technical secret, business information or news, i.e. manufacture craft, recipe, trade contact, sales channels and other business secret unwillingly disclosed by the litigants.”

2. The interrogation in camera

In addition to the above regulation, the law also provides the “in-camera procedure” of interrogation, which is mainly basing on Article 66 of Civil Procedure Law:

“Evidence shall be presented in the court and be cross-examined by the parties. However, evidence that involves State secrets, trade secrets or personal privacy of individuals shall be kept confidential, if it is necessary to be presented in the court, it may not be presented in an open court session.”

And Article 48 of Regulations on Civil Evidences by Supreme People’s Court：

“evidence that involves State secrets, trade secrets or personal privacy of individuals shall not be interrogated one the court.”

With the above regulation, it is not difficult to detain in the public heard cases, the proof and interrogation with the secret involved could be decided or applied for being conducted in camera, with the clauses in Civil Procedure Law.

II. Who could apply for the lawsuit-in-camera?

Basing on the aforesaid clauses in Civil Procedure Law and Regulations on Evidences, the party who is legally entitled to apply for the private hearing includes the party acting in the lawsuit or the party in the proof. Yet the law makes no specification on the “party”, but by the practices, they could be the plaintiff, defendant, third party, appealer and appellant and witness.

Also it comes to our notice that someone advocates the accused infringer shall not be included in the litigant to file the application for private hearing, for the procedure law is mainly regulated on the substance laws, like the Marriage Law, Corporate Law and Anti Unfair Competition Law, which are mainly aiming at the protection over the substantial interest of the right owner. Therefore, no one damaging other’s interests shall have no rights to make that application. However, to our consideration that statement is more of arbitrary, since the procedure of the lawsuit could not only conclude the secret of the plaintiff but also indicate the trade secret of the defendant. Therefore, for the limitation on the litigant, it shall not be judged from the substantial laws, and thereby favor either party injustice.

III. In which phrase to file the application?

The laws has no detailed provision on the application time in the lawsuit, and in practices, for any secret found related in the lawsuit, the court shall switch the procedure into a in-camera one, therefore it could deduced that the before the investigation phrase of the lawsuit, the proper litigant could apply for the private hearing.

Therefore, with the above analysis, although Apple’s application was refused for reasons, theoretically, once it could be proved there are lots of trade secrets are concerned in the lawsuit, then Apple could still apply for a private hearing or interrogation.

Other recommended posts on our website:
1. The Actual Term of Trademark Registration in China
2. How to Apply for the Trademark Record in China Custom
3. How to improve the success rate of trademark registration in China?
4. Matters for Attention in Trademark Refusal Review in China
5. Introduction of China’s Legal System of Trademark Renewal
6. Introduction on the Regulations concerning the Capital Contribution in IPR or Domain Name in China
7. The Copyright Registration in China Could Be FREE?
8. China Copyright Protection Term Longer than EU’s?
9. Matters for Attention in the Patent Preliminary Injunction Application in China(I)

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