Confidentiality agreement is a special provision signed between the employer and the employee, which stipulates that the employee shall not disclose the business secrets of the unit during the period of working in the unit and during a certain period after leaving the company. The trade secret herein refers to the technical information and business information that is not known to the public, can bring economic benefits to the right holder, is practical and has been kept confidential by the right holder according to the provisions of the Law against Unfair Competition. With the intensification of market competition, employers pay more and more attention to the protection of their own technology and trade secrets, and more and more enterprises begin to sign confidentiality agreements on the basis of signing labor contracts. China's labor laws and regulations stipulate that the parties involved in the labor contract can agree to keep the relevant matters of the trade secret of the employing unit in the labor contract.

1. The scope of confidentiality, when the employer agrees on the confidentiality content, be sure to specify the object, content and period that need to be kept confidential, and it is best to list all the contents that need to be kept confidential by enumerating, otherwise it is easy to cause litigation disputes due to unclear agreement. In different enterprises and different periods of the same enterprise, the scope and content of confidentiality have also changed, and the employer shall modify the content of the confidentiality agreement in time.

2. Confidential subjects, the confidential subjects of trade secrets are generally limited to workers in secret-related posts. For confidential posts and technical posts, they are required not to disclose, donate, transfer, destroy or assist third parties in infringing the company's trade secrets. In addition to the above secret-related posts, workers who do not necessarily bear the confidentiality obligation should also be included in the scope of confidentiality subjects and bear the confidentiality responsibility when they learn company secrets intentionally or unintentionally in the course of their work. In addition, the family and friends of those workers who have the trade secrets should also have the same obligation to keep the trade secrets.

3. Confidentiality period: The confidentiality period shall be clearly stipulated in the confidentiality agreement. Although the law stipulates that the obligation of employees to keep secrets is not exempted by the rescission or termination of the labor contract, it is better to agree on the starting and ending time of the confidentiality obligation to avoid unnecessary disputes due to the expiration, disclosure or elimination of trade secrets.

4. Rights and obligations shall be clearly stipulated in the confidentiality agreement on how to use trade secrets, the ownership of job achievements involving trade secrets, the preservation and destruction methods of confidential documents, etc. If there are special provisions, the agreement shall be made in the form of listing. In addition, according to the provisions of the Labor Contract Law, the confidentiality agreement shall not directly set liquidated damages, and if the liquidated damages are agreed, there is a risk that they will be deemed invalid. However, this does not mean that the liability for breach of contract cannot be stipulated in the confidentiality agreement, and the content of compensation for breach of confidentiality obligation and the method of calculating the amount of compensation can be stipulated in the confidentiality agreement.

5. Competition, although the competition clause can be agreed or not, it is undeniable that the competition clause is a powerful umbrella for the protection of trade secrets. It should be noted that the period and obligations of the competition restriction, the standard of economic compensation, the payment time of economic compensation and the conditions for the release of the terms must be clearly agreed, otherwise the enterprise may be in danger of paying high economic compensation.

6. Dispute jurisdiction, confidentiality agreement is subordinate to the labor contract, but can be signed separately. If a confidentiality agreement has the basic contents of a labor contract, it may be regarded as a labor contract. Where only a confidentiality agreement is concluded and the basic contents of the labor contract are not included, the labor contract shall be concluded within one month. The confidentiality Agreement may stipulate A dispute resolution institution, but the dispute resolution institution must be identified and unique. It cannot stipulate the selection of both an arbitration institution and a court, or the arbitration institution or court at both A and B places, otherwise the clause shall be invalid.

【 Case Study 】

Reflective material company was established on April 4, 1996, the business scope for reflective materials and application of reflective material products, coating products, processing and sales. Song Junchao has been a salesman in the reflective material Company since 2006, mainly responsible for the sales business in the three Northeast provinces and some other regions, in charge of all the customer information of the reflective material company in the three Northeast provinces and some customer information in other provinces. Reflective material company and Song Junchao have signed two labor contracts, and agreed to a confidentiality clause, competition restriction clause. Reflective material company has a confidentiality system for its business information, and has taken the necessary confidentiality measures for customer and potential customer information, and has paid the confidentiality costs to Song Junchao and other salesmen. After Song Junchao borrowed the name of his relative Li Jianfa registered Rui Xin business department, and traded with customers in the northeast of the reflective material company.

The court held that the reflective material company spent a lot of time, money and labor, formed a detailed business information of the customer list, formed a reflective material company business information secret point, reflecting the reflective material company's unique customer information, can not be obtained from the public information, in line with the "not known to the public" identification conditions. These business information has realistic or potential commercial value, practical in production and operation, can bring economic benefits for reflective material companies, competitive advantages, in line with the "can bring economic benefits to the right holder, practical" identification conditions. Reflective material company for the above business information to develop a specific confidentiality system, customer and potential customer information to take the necessary confidentiality measures, and Song Junchao signed the labor contract clearly agreed on the confidentiality clause, competition restriction clause, reflective material company also to Song Junchao and other salesmen paid the corresponding confidentiality costs, It is proved that the reflective material company has taken reasonable "confidentiality measures" for the above business information. In summary, the customer list produced by the reflective material company constitutes a trade secret. Song Junchao has been a salesman in the reflective material company since 2006, and is very familiar with the business information such as customer information about the trade secrets of the reflective material company in the work. Song Junchao registered Rui Xin business department in the name of his relatives Li Jianfa, and traded with customers in the northeast region of the reflective material company, which can be identified as a breach of confidentiality agreement, disclosure, use, and allow others to use the reflective material company's business information behavior, which infringes the reflective material company's trade secrets.

With the development of modern society, the main industry types of today's enterprises are gradually transforming from low value-added labor-intensive industries to high value-added knowledge-intensive industries. In this kind of labor process involving high-tech enterprises, it is inevitable to encounter the disclosure of business secrets, and the source of the disclosure is basically concentrated in the master of this part of the technology of the senior executives or technicians. Therefore, for this type of enterprise, it is necessary to sign a confidentiality agreement between the company's relevant secrets and the workers to prevent the disclosure of trade secrets, or obtain relief in time after the disclosure of trade secrets. In this case, the reflective material company took precautions, signed a confidentiality agreement with its employees in advance, successfully stopped the disclosure of trade secrets, and stopped the losses in a timely manner, which is a good practice. Through this case, an additional point is that the existence of the confidentiality agreement itself is a kind of "deterrent", and enterprises can curb the idea of workers disclosing trade secrets to a certain extent through the heavy default price of the confidentiality agreement.