Study On Away-from-secret Period Institution Of Laborer In PRC

Under the background of Internet,trade secret has become an important intangible property of enterprises,which has been paid more and more attention by enterprises.In view of the increasing number of trade secret infringement cases in practice,the huge amount of involved objects and the complicated and diversified situation of cases,the Supreme People’s Court issued the provisions on Several Issues concerning the application of law in the trial of civil cases of infringement of trade secrets(hereinafter referred to as "judicial interpretation of trade secrets")on September 11,2020 This is the first time for China to issue a separate judicial interpretation on the civil cases of trade secrets.The purpose is to reduce the threshold for the obligee to protect trade secrets and combat the infringement of trade secrets.Based on the analysis of the infringement cases of business secrets,the infringement of business secrets by former employees accounts for a large proportion.In the field of labor law,the system of protecting trade secrets is mainly to sign confidentiality agreement and non competition agreement,but there are still problems in protecting trade secrets only by confidentiality agreement and non competition agreement.In fact,in our country’s labor law system,there is another legal system for protecting trade secrets—away-from-secret period institution,which means that companies take measures to declassify workers during the prior notice period before the worker resigns.However,due to the conflict between the provision of advance notice period in Article 37 of the labor contract law and the declassification period system,the former department rules of the Ministry of labor and the local laws and regulations of some provinces and cities only use "advance notice period" to express,and there is no specific and clear provision on the away-from-secret period institution at the legal level,which also leads to the fact that the away-from-secret period institution is rarely used in China’s practice,There are also conflicts in judicial practice.However,"garden leave",which is very similar to the away-from-secret period institution in European and American countries,is widely used in the practice of protecting business secrets,and has also been recognized by many courts.The author thinks that under the labor law system,we should improve the existing away-from-secret period institution,recognize the legal effect of the away-from-secret period institution,further improve the away-from-secret period institution,promote the complementary role of the away-from-secret period institution and the non competition restriction system,and jointly achieve the purpose of protecting business secrets.