In the data age, business secrets of enterprises have no less value than physical property, and leakage incidents may bring harm to corporate image, technology loss, economic losses, and other aspects. While actively protecting shareholders' right to know, enterprises also need to strengthen compliance management, improve corporate systems, and strengthen the protection of trade secrets and other important information through prior prevention.

1.The shareholders are bound by the confidentiality clause or Non-compete clause in the Articles of Association.

The articles of association of a company serve as a guiding document for the operation of the enterprise, as well as the basic principles for the organization and activities of the company, and are binding on shareholders. According to the current Company Law and Labor Contract Law, employees of enterprises with specific identities have confidentiality obligations or non compete obligations in accordance with the law, but shareholders do not necessarily have such obligations. Clarifying shareholder confidentiality clauses or non compete clauses in the form of company articles of association can not only strengthen the constraints on shareholders, but also facilitate the retention of written evidence.

2. Sign a Non-disclosure agreement, non competition agreement with shareholders, or require shareholders to sign a letter of commitment.

An enterprise may, by signing a Non-disclosure agreement or a non competition agreement with shareholders, entrust shareholders with the obligation to keep trade secrets confidential, or entrust shareholders who know trade secrets with the obligation not to engage in the same kind of business in other competitive units that produce or operate the same kind of products, or engage in the same kind of business, or not to start their own business to produce or operate the same kind of products, or engage in the same kind of business within a certain period of time, In order to prevent the leakage of trade secrets from the source or prevent internal personnel who are aware of trade secrets from using relevant information to compete with the enterprise. The agreement can clearly stipulate the liability of shareholders for breach of confidentiality or non compete obligations, so as to have a clear basis for subsequent accountability and serve as a warning to shareholders. If a shareholder has already entered a competitive company for employment or started their own business, the enterprise may send a letter to the shareholder or their company, explaining the relevant situation in the letter and solemnly requiring the shareholder to fulfill its confidentiality obligation.

3. Improve the internal system of the company, such as labor system and confidentiality system.

Improve the internal system of the company, such as labor system and confidentiality system.

4.Strengthen the backtracking of shareholders.

Enterprises can conduct a backcheck on shareholders before or after their investment, by examining whether they have engaged in competition with the company, whether they have become parties to civil or criminal lawsuits due to leakage or other illegal situations, and whether there are records of administrative penalties, to determine whether there is a certain risk of leakage as shareholders and take relevant risk mitigation measures. For shareholders who hold specific positions in the enterprise, they can also determine through backtracking whether they should not hold such positions in accordance with the law, or whether there is a significant risk of leakage when holding such positions. In addition, according to the provisions of the Company Law, enterprises can refuse to provide access to accounting books when they reasonably suspect that shareholders have improper purposes. According to this logic, if shareholders can discover that there may be improper purposes before accessing or copying enterprise information, they can, based on the actual situation, prevent leakage by refusing to provide access or requiring them to sign a commitment letter.

If the shareholder leakage occurs, the enterprise needs to react quickly and choose the appropriate way to carry out the right relief in order to minimize the degree of harm.

1. Civil litigation

The enterprise may file a civil lawsuit to claim liability for breach of contract from the disclosing shareholder, and demand that it pay liquidated damages (on the premise of the articles of association, confidentiality agreement, etc.) or claim tort liability, requiring it to stop the infringement, eliminate the nuisance, and compensate for actual losses. In practice, due to the special nature of trade secrets as "information", the transformation of trade secrets into actual interests needs to go through a complex process. It is often difficult to determine the actual loss caused by such infringement and the amount of actual interests obtained by the infringer due to the infringement. Therefore, if the actual loss needs to be compensated, the amount of compensation is usually determined by the court. If the leaking shareholder violates the law and defaults to start business or buy shares or join other companies, the enterprise can also have unfair competition or infringement of trade secrets, and the company requiring the leaking shareholder to buy shares, join or set up shall bear civil liability. If the disclosed shareholder is an employee of the company, the company can pursue its legal responsibility through labor arbitration.

In addition, if the accountants and lawyers who assist shareholders to consult the company's documents disclose the company's trade secrets and cause damage to the legitimate interests of the company, the company can also be held accountable by means of litigation.

2. Administrative reporting

In the event of shareholder disclosure, the enterprise may report to the department performing the duties of industrial and commercial administration, and the relevant department will impose administrative penalties on the disclosing shareholder by confiscating the illegal income or imposing a fine according to law.

3. Criminal charges

If the disclosure of information meets the criminal requirements stipulated in the Criminal Law, the enterprise may collect evidence on its own, report to the public security organ, and criminally prosecute the disclosing shareholder. In determining whether it constitutes a crime of infringing trade secrets, the court usually pays attention to the consideration of subjective elements, that is, whether the disclosing shareholder has subjective malicious intent. If the leak is caused by the inadvertent loss of the USB flash drive or documents, data theft, and mistransmission of data, such non-active disclosure is usually not considered a crime. In judicial cases, the court often takes whether the disclosing shareholder gains profits from the disclosure as an important standard to judge whether the disclosing shareholder has subjective malice.

Shareholders' right to know and the protection of trade secrets are both important topics in the field of corporate governance. The dimensions and boundaries of shareholders' right to know are also worth exploring. Enterprises need to constantly adjust their governance structure and improve corporate rules and regulations to cope with the constant changes in laws and regulations and the business environment. Hillhouse Law Firm will give full play to its professional advantages and effectively help enterprises prevent relevant legal risks; We will also provide enterprises with more forms and more abundant legal service projects according to the development of the industry and the actual situation of enterprises, and guide enterprises to make scientific decisions and standardize development.