一起劳动合同争议中商业秘密纠纷案二审代理纪实

——周显根律师

公司欠资 技术人员据此解除劳动合同

陈某原系某化学建材有限公司（下称有限公司）于1996年10月招聘的技术人员，双方劳动合同规定：1、陈某工作期限三年；2、陈某职务：总经理助理；3、陈某责任：维护公司权益，遵守公司规章制度、保密制度等内容。合同签订后，陈某依约担任了有限公司总经理助理并分管技术工作并掌管塑料扣板配方技术信息。1997年9月，有限公司针对企业技术人员出走现象，决定对员工工资进行15%提留。自1997年11月至1998年2月，有限公司共提留陈某工资1320元；1998年3月，陈某向有限公司提出辞职，有限公司未予答复。1998年4月初，陈某向公司移交了有关分管技术资料包括塑料扣板配方技术信息并提出解除劳动合同。后陈某未回有限公司上班。

市场待聘 被同类企业聘用

陈某作为技术人员，为发挥自已的一技之长，于1998年4月底到某市区人才市场应征待聘，同年5月，郏某作为业主创办的装璜材料厂通过人才市场聘用陈某为该技术员工，陈某同样分管负责塑料扣板生产。郏某原系有限公司的客户，为有限公司销售塑料扣板。

争得先机 有限公司提起劳动争议仲裁申请

由于有限公司自陈某离职后，公司没有分管技术人员和技术骨干，生产形势直接转下，公司产品因质量问题被退回，产品生产废品率上升等，在此情况下，有限公司向当地劳动争议仲裁委员会得出了劳动争议申请，要求：1、要求陈某继续履行劳动合同；2、要求陈某因其擅自离职给公司造成的损失约25万元；3、要求陈某和郏某赔偿因陈某泄密所造成经济损失15万元。劳动仲裁委员会经过审理认为：因有限公司单方扣除陈某工资，违反了《劳动法》第50条禁止性规定，陈某据此有权根据《劳动法》第32条规定，单方解除劳动合同，故对有限公司要求继续履行劳动合同请求不予支持；同时对陈某提出要求有限公司返还克扣工资请求予以支持。对有限公司要求陈某和郏某因陈某泄密给其造成的损失15万元请求予以支持。

不服仲裁决定起诉 未得一审法院支持

陈某和郏某劳动争议仲裁委员会的裁决，向当地人民法院提起诉讼，请求撤销劳动争议仲裁委员会的裁决并要求有限公司赔偿返还被克扣的工资、补发加班工资等诉讼请求；初审法院经过审理后认为：由于有限公司单方扣除工资，违反《劳动法》禁止性规定，陈某有权据此解除劳动合同，陈某提出要求返还克扣工资并补发加班工资并无不当，依法予以支持。但陈某作为有限公司掌管塑料扣板技术人员，对掌管的技术负有保密义务，即使用在合同解除后仍应负有该义务；可陈某在与有限公司解除劳动合同关系不到二个月时间内，就被郏某招聘，负责塑料扣板生产技术工作，其生产的产品与有限公司生产的产品“大同小异、其配方基本相同”，故陈某违反了合同约定和法律规定的保密义务，据此判决：1、有限公司在判决生效后7日内支付给陈某拖欠工资1320元等；2、陈某、郏某于判决生效后7天内连带赔偿给有限公司损失计人民币15万元正。

巧遇秀才法官 明辩案件事理

陈某、郏某在一审判决后不服，向台州市中级人民法院提起上诉，其主要理由：1、一审判决认定有限公司所提供的塑料扣板配方和工艺属商业秘密缺乏依据；2、即使商业秘密存在，陈某、郏某也没有侵犯有限公司的商业秘密。陈某、郏某在二审期间，委托周显根律师为其诉讼代理人；周显根律师在庭审中就本案焦点问题提出了自已不同的看法：

一、商业秘密侵权纠纷 权利人应先就商业秘密范围进行举证

二审程序中，法庭在一般情况下，均上要求上诉人先就自已的上诉主张进行举证，可在本案中，周显根律师就本案劳动争议中商业秘密侵权举证责任问题，提出由权利人即本案被上诉人有限公司先举证商业秘密范围，理由：1、要求被上诉人先商业秘密范围作出界定，以便确定上诉人郏某生产的产品是否采用上诉人产品生产技术信息并确定上诉人陈某是否存在泄密侵权行为；2、要求被上诉人对就商业秘密所采取的保密措施进行举证，以便确定上诉人行为是否违反有关保密措施规定；3确定商业秘密范围，有助于查明本案侵权行为到底采取何种形式、方式进行的；4、有限公司在一审庭审中提供了不同内容塑料扣板配方和工艺技术信息，先行确定商业秘密范围，有助于查明侵权的对象。而有限公司代理人认为：本案是商业秘密侵权纠纷，陈某、郏某应就自不存在侵权事实进行举证；周显根律师认为：有限公司代理人看法是假设有限公司商业秘密存在为其前提条件，该条件恰恰是本案所要解决的前提；最后二审法院支持了周显根律师的主张，要求有限公司先就商业秘密所要保护的范围进行确定。

二、有限公司提供的塑料扣板配方和工艺能否成为其商业秘密

在本案中，有限公司要求保护的商业秘密包括三个部分即1、机器设备供应商提供的塑料扣板配方技术信息；2、陈某批方、审定启用的1号及供一车间三号机、二车间专用塑料扣板配方生产技术。上述有关塑料扣板配方生产技术，周显根律师认为不符合商业秘密构成条件，主要理由：1、在一审庭审中，有限公司无法确定其产品依据何种配方进行生产，有限公司也没有制定塑料扣板生产的技术标准或质量标准；同时，有限公司提供的塑料扣板生产配方所含成份，在许多出版的书籍中已予记载如李志英编著的《硬聚氯乙烯塑料异型材和塑料窗制造与应用》，1990年《塑料异型材》杂志报道载明：全国20几家生产塑料扣板配方，基本上大同小异，表明有限公司提供的塑料扣板配方技术没有成型且是公知技术；2、从有限公司提供的股东会纪要及会计审计报告可以证实：有限公司利用自已配方进行生产，不但产品质量不稳定，且不能为有限公司带来经济利益，表明该配方不具有经济价值性；3、作为商业秘密的塑料扣板配方和工艺，有限公司无法确定配方基本成份和生产工艺程序，表明该配方和工艺不具有实用性；4、有限公司没有提供为保护其配方和工艺所采取的具体保密措施。

三、郏某自聘用陈某后，没有利用有限公司配方和工艺进行生产。

主要表现：1、生产设备不同。有限公司的生产设备是单螺杆的机器设备，而郏某使用的机器设备是双螺杆生产设备，两者之间不存相互通融性；如把有限公司配方设置于郏某所购的设备上生产是无法产出产品。2、塑料扣板配方来源不同，有限公司塑料扣板配方来源于设备供应商，同样郏某使用的塑料扣板配方也来源于设备供应商，但两者设备供应商分属不同的企业。3、郏某使用的配方的基本成份和含量与有限公司产品成份、含量不同，对鉴定机关已在鉴定结论中予以证实。

尘埃落定 伏案思索

二审法院审理后认为：郏某招聘陈某从事塑料扣板生产技术工作，但郏某使用的配方因其来源、生产设备不同且全国生产该产品的企业的产品成份基本上均大同小异，原审法院仅凭陈某在有限公司期间熟悉有限公司配方，就以两者产品“大同小异、其配方基本相同”为由，认定郏某利用有限公司配方进行生产和陈某泄密，证据不足，故驳回有限公司对陈某、郏某提出的侵犯商业秘密侵权赔偿损失之诉。

本案陈某、郏某的权益虽然通过上诉程序得以维护，但本案在以下几个方面应当引起人们思索：

一、二审法院对有限公司提供的塑料扣板配方是否属于商业秘密，在终审判决中未予肯定或否定，这是二审判决的一个缺陷，但从判由引用有关杂志等材料表明：二审法院认为塑料扣板生产配方是公知技术信息，而不是某一企业独有的商业秘密。

二、任何一个企业与员工签订劳动合同时，不但要在劳动合同中订明保密条款，而对关键技术人员专门签订保密协议，这样才能确保员工的保密意识。

三、企业应针对不断变化的形势，对自已的商业秘密要及时制定保密范围和保密措施，才能使自已在有关商业秘密侵权纠纷诉讼中做到有理有据。

Report on the Second Trial Agency of a Trade Secret Dispute Case in a Labor Contract Dispute

——Lawyer Zhou Xiangen

The company's technical personnel in arrears are hereby terminated from their labor contracts

Chen was originally a technical personnel recruited by a certain chemical building materials limited company (hereinafter referred to as the limited company) in October 1996. The labor contract between the two parties stipulates that: 1. Chen worked for a period of three years; 2. Position of Chen: Assistant to the General Manager; 3. Chen's responsibility: to safeguard the company's rights and comply with the company's rules and regulations, confidentiality systems, and other contents. After the contract was signed, Chen served as an assistant to the general manager of the limited company and was responsible for technical work, as well as technical information on plastic buckle plate formulas. In September 1997, the limited company decided to withhold 15% of employees' salaries in response to the phenomenon of technical personnel leaving the company. From November 1997 to February 1998, the limited company retained a total of 1320 yuan from Chen's salary; In March 1998, Chen submitted his resignation to the limited company, but the limited company did not respond. In early April 1998, Chen handed over relevant technical information, including plastic buckle formula technical information, to the company and proposed to terminate the labor contract. Later, Chen did not return to work at the limited company.

Market waiting to be hired by similar enterprises

As a technical staff member, Chen applied for employment at the talent market in a certain urban area at the end of April 1998 to showcase his own skills. In May of the same year, the decoration material factory established by Jia as the owner hired Chen as the technical staff member through the talent market, and Chen was also responsible for the production of plastic buckle plates. A customer of Jiamou Original Co., Ltd. sells plastic buckle plates for the limited company.

Zhengde Xianji Co., Ltd. filed an application for labor dispute arbitration

Due to the fact that the limited company has no technical personnel or backbone in charge since Chen resigned, the production situation has directly turned down, and the company's products have been returned due to quality issues, resulting in an increase in product production scrap rate. In this case, the limited company has submitted a labor dispute application to the local labor dispute arbitration committee, requesting that: 1. Chen continue to fulfill the labor contract; 2. Requesting Chen to cause losses of approximately 250000 yuan to the company due to his unauthorized resignation; 3. Requesting compensation of 150000 yuan from Chen and Jia for the economic losses caused by Chen's leak. After hearing, the Labor Arbitration Commission found that due to the unilateral deduction of Chen's salary by the limited company, which violated the prohibitive provisions of Article 50 of the Labor Law, Chen has the right to unilaterally terminate the labor contract in accordance with Article 32 of the Labor Law. Therefore, the request of the limited company to continue fulfilling the labor contract is not supported; At the same time, support Chen's request for the limited company to refund the deducted salary. Support the request of the limited company for a loss of 150000 yuan caused by Chen and Jia's leakage of information.

Litigation against arbitration decision not supported by first instance court

Chen and Jia filed a lawsuit with the local people's court regarding the ruling of the labor dispute arbitration committee, requesting the revocation of the ruling of the labor dispute arbitration committee and requesting compensation from the limited company for the return of the deducted salary and the payment of overtime wages; After trial, the court of first instance held that due to the unilateral deduction of wages by the limited company, which violated the prohibitive provisions of the Labor Law, Chen had the right to terminate the labor contract accordingly. Chen's request to return the deducted wages and pay overtime wages was not inappropriate, and he supported it in accordance with the law. However, as a technician in charge of plastic buckle plates in a limited company, Chen has a confidentiality obligation for the technology in charge, that is, he should still have this obligation after the contract is terminated; Within less than two months after the termination of the labor contract with the limited company, Chen was recruited by Jia to be responsible for the production technology of plastic gusset plates. The products produced by him were "similar to those produced by the limited company, and their formulas were basically the same." Therefore, Chen violated the confidentiality obligations stipulated in the contract and legal provisions. Therefore, the judgment was made as follows: 1. The limited company paid Chen 1320 yuan in arrears of wages within 7 days after the judgment came into effect; 2. Chen and Jia jointly compensated the limited company with a loss of RMB 150000 within 7 days after the judgment came into effect.

Encountering a scholar judge to argue the case clearly

After the first instance judgment, Chen and Jia refused to accept and appealed to the Intermediate People's Court of Taizhou City. The main reasons for the appeal were: 1. The first instance judgment found that the plastic buckle plate formula and process provided by Limited Company were trade secrets and lacked basis; 2. Even if trade secrets exist, Chen and Jia have not infringed on the trade secrets of the limited company. During the second instance, Chen and Jia entrusted Lawyer Zhou Xiangen as their litigation representatives; Lawyer Zhou Xiangen raised his own different views on the key issues of this case during the trial:

1、 The right holder of a trade secret infringement dispute should first provide evidence on the scope of the trade secret

In the second instance procedure, the court generally requires the appellant to provide evidence on their own appeal claim. However, in this case, Lawyer Zhou Xiangen raised the issue of the burden of proof for trade secret infringement in the labor dispute, proposing that the right holder, i.e. the appellee Limited Company, should first provide evidence on the scope of trade secrets. The reason is: 1. Require the appellee to define the scope of trade secrets first, In order to determine whether the products produced by appellant Jia use the appellant's product production technical information and whether appellant Chen has engaged in a breach of confidentiality infringement; 2. Require the appellant to provide evidence on the confidentiality measures taken regarding trade secrets, in order to determine whether the appellant's actions violated the relevant confidentiality measures; Determining the scope of trade secrets helps to identify the form and method of infringement in this case; 4. The limited company provided different contents of plastic buckle plate formulas and process technical information in the first instance trial, first determining the scope of trade secrets, which helps to identify the target of infringement. The agent of the limited company believes that this case is a trade secret infringement dispute, and Chen and Jia should provide evidence that there is no infringement fact; Lawyer Zhou Xiangen believes that the view of the limited company agent is to assume the existence of the limited company's trade secrets as its prerequisite, which is precisely the premise to be solved in this case; Finally, the second instance court supported Lawyer Zhou Xiangen's claim, requiring the limited company to first determine the scope of protection for trade secrets.

2、 Can the plastic buckle formula and process provided by the limited company become its trade secret

In this case, the trade secrets required to be protected by the limited company include three parts: 1. the technical information of the plastic buckle plate formula provided by the machine equipment supplier; 2. Chen approved and approved the production technology of plastic buckle plate formulas for Unit 1, Unit 3 in Workshop 1, and Workshop 2. Lawyer Zhou Xiangen believes that the production technology of plastic buckle plate formula mentioned above does not meet the conditions for constituting trade secrets. The main reasons are: 1. In the first instance trial, the limited company was unable to determine which formula its products were produced based on, and the limited company did not establish technical or quality standards for plastic buckle plate production; At the same time, the ingredients contained in the production formula for plastic gusset plates provided by the limited company have been recorded in many published books, such as Li Zhiying's "Manufacturing and Application of Unplasticized Polyvinyl Chloride Plastic Shapes and Plastic Windows". In 1990, the magazine "Plastic Shapes" reported that more than 20 companies in China produce plastic gusset plate formulas, which are basically similar, indicating that the plastic gusset plate formula technology provided by the limited company has not been formed and is a well-known technology; 2. The shareholders' meeting minutes and accounting audit reports provided by the limited company can confirm that the limited company uses its own formula for production, which not only has unstable product quality but also cannot bring economic benefits to the limited company, indicating that the formula does not have economic value; 3. As a trade secret, the formula and process of plastic buckle plates cannot be determined by the limited company, indicating that the formula and process are not practical; 4. The limited company did not provide specific confidentiality measures to protect its formulas and processes.

3、 After hiring Chen, Jia did not utilize the limited company's formulas and processes for production.

Main manifestations: 1. Different production equipment. The production equipment of the limited company is single screw machine equipment, while the machine equipment used by Jia is double screw production equipment, and there is no interoperability between the two; If the limited company formula is set up on the equipment purchased by Jia for production, it is impossible to produce products. 2. The formula for plastic gusset plates comes from different sources. The formula for plastic gusset plates in our limited company comes from the equipment supplier, and the formula for plastic gusset plates used by Jiamou also comes from the equipment supplier. However, the two equipment suppliers belong to different enterprises. 3. The basic ingredients and content of the formula used by Jia are different from those of the limited company's products, and have been confirmed by the appraisal authority in the appraisal conclusion.

Dust settles and ponders over the case

After the second instance court held that Jia recruited Chen to work in the production technology of plastic gusset plates, but the formula used by Jia was similar due to different sources and production equipment, and the product ingredients of the enterprises producing the product nationwide were basically the same. The original trial court only relied on Chen's familiarity with the limited company's formula during his time at the limited company, citing the fact that the two products were "similar, but their formulas were basically the same", It is determined that Jia used the formula of the limited company for production and Chen leaked the information, but the evidence is insufficient. Therefore, the lawsuit of the limited company against Chen and Jia for infringement of trade secrets and compensation for losses is rejected.

Although the rights and interests of Chen and Jia in this case were safeguarded through the appeal process, the following aspects of this case should be considered:

1、 The second instance court did not confirm or deny in the final judgment whether the plastic buckle plate formula provided by the limited company belongs to a trade secret, which is a defect of the second instance judgment. However, citing relevant magazines and other materials from the judgment, the second instance court believes that the plastic buckle plate production formula is public technical information, not a unique trade secret of a certain enterprise.

2、 When any enterprise signs a labor contract with its employees, it is not only necessary to specify confidentiality clauses in the labor contract, but also to sign a confidentiality agreement specifically for key technical personnel, in order to ensure employees' confidentiality awareness.

3、 Enterprises should timely formulate confidentiality scope and measures for their own trade secrets in response to the constantly changing situation, in order to ensure that they have a reasonable basis in litigation related to trade secret infringement disputes.