Article 26, paragraph 1 of the "Regulations on the Administration of Security Services", which came into effect on January 1, 2010, states: "Security agencies shall know the state secrets, business secrets of security services, and information explicitly requested by client units for confidentiality. Keep it confidential. "The sixth item in the conduct that the security guards listed in Article 30 shall not engage in:" Security guards must not infringe on the privacy of individuals or disclose state secrets, business secrets learned in security services, and customers that explicitly require confidentiality. Information. "These two rules can be summarized as the confidentiality obligations of security practitioners and security guards. Security practitioners and security guards have the obligation to keep secrets of state secrets, business secrets, personal privacy, and information explicitly required to be kept confidential by customers in the course of engaging in security services. They must not disclose them at will, or they will bear corresponding responsibilities.
Duty to keep state secrets
Keeping state secrets is a statutory obligation that any unit and individual must abide by, and security practitioners and security guards are of course no exception. Article 22 of the "Regulations on the Administration of Security Services" stipulates that key security units identified by local people's governments at or above the city level that are divided into districts related to national security and involving state secrets must not engage wholly foreign-owned, Chinese-foreign joint ventures, or Chinese-foreign cooperative security service companies Security services. It can be seen that the protection of state secrets is an important content related to national security. Especially for security guards who perform security services in state agencies, enterprises, and institutions that involve state secrets, it is very important to keep the state secrets in mind at all times.
I. Scope and duration of state secrets
According to the Law of the People's Republic of China on the Protection of State Secrets (hereinafter referred to as the "Confidentiality Law"), state secrets are matters that are related to national security and interests, and are determined in accordance with legal procedures, and are restricted to a certain range of persons within a certain period of time. All state organs, armed forces, political parties, social organizations, enterprises and institutions and citizens have the obligation to keep state secrets. The scope of state secrets includes: (1) secret matters in major national affairs decisions; (2) secret matters in national defense construction and armed forces activities; (3) secret matters in diplomatic and foreign affairs activities, and secrets undertaking confidentiality obligations abroad Matters; (4) secret matters in national economic and social development; (5) secret matters in science and technology; (6) secret matters in maintaining national security activities and tracing criminal offences; (7) approved by the State Administration for Confidentiality Other secret matters identified. Any party's secret matters that meet the provisions of the preceding paragraph shall be state secrets. According to the severity of the potential impact on national security and interests after the leak, state secrets can be classified into top secrets, secrets, and secrets.
According to the "Confidentiality Law", state secrets have a certain period of confidentiality. According to the nature and characteristics of the matter, it is limited to the necessary period according to the needs of maintaining national security and interests; if the period cannot be determined, the conditions for decryption should be determined. Unless otherwise specified, the confidentiality period of top-secret state secrets shall not exceed thirty years, the confidential level shall not exceed twenty years, and the secret level shall not exceed ten years. If the confidentiality period has expired, it will be decrypted by itself.
Second, the confidentiality system
Keeping state secrets and implementing them into practice means strictly observing the confidentiality system. The Secrecy Law has a strict secrecy system for the management of state secrets. The production, transmission, reception, transmission, use, duplication, preservation, maintenance and destruction of state secret carriers; the development, production, transportation, use, preservation, maintenance and destruction of equipment and products belonging to state secrets shall all comply with the state's confidentiality regulations. Security units and security guards must strictly abide by the confidentiality system in their work. For contacting state secret carriers or equipment and products, they must strictly follow the procedures and methods stipulated by the confidentiality system to send and receive, transfer, save, repair and destroy.
Keeping secrets in mind at all times and strictly abiding by the confidentiality system are the only ways to prevent leaks. In practice, everyone knows that deliberately stealing or disclosing state secrets is an illegal crime, but has not paid enough attention to negligent acts of disclosing state secrets, and numerous leaks have been triggered. Especially in recent years, the rapid development and rapid popularization of computer and Internet technology has led to an increasing number of network leaks. Among them, due to the indifferent consciousness of many people, negligent unintentional leaks caused by insufficient attention to the possibility of network leaks account for the majority of network leaks.
Wang, a security guard at a research institute, saw the computer components stacked in the unit's warehouse that had been withdrawn from use, and considered them to be useless waste products, and dealt with them at a low price to a friend who bought used electrical appliances. After testing, these computers stored a large number of confidential documents.
Liu, who works at a government agency, uses the company's confidential computer to go online without taking any security measures, resulting in the internal information stored in the computer being in an unprotected state. It was discovered by the State Security Administration during a confidentiality check on the Internet. Investigated.
Through two typical cases of negligence and leakage, we can see that protecting state secrets is not a topic far away from us. It exists in our daily work and life. Especially for security personnel working in state agencies and units that involve state secrets, they must not only protect the safety of tangible people and property, but also the security of intangible state secrets.
Legal liability for breach of the Confidentiality Law
The protection of state secrets by law is comprehensive. The violations include not only the illegal acquisition of state secrets by persons without the right to know the state secrets, but also the illegal disclosure of state secrets by those who have the right to know the state secrets; Negligence leaked state secrets. Violating the confidentiality system stipulated in the "Secrecy Law", illegally obtaining or intentionally or negligently leaking state secrets will be held liable for a crime, and criminal liability shall be investigated in accordance with the law.
Obligation to keep trade secrets With the continuous development of China's socialist market economy and the constant intensification of market competition, the importance of trade secrets as a weapon of market competition has attracted increasing attention from enterprises. In order to maintain the orderly progress of market competition and the healthy development of the market economy, the protection of trade secrets by Chinese laws is becoming more comprehensive and specific. The "Regulations on the Administration of Security Services" stipulates that social capital can start security service companies, which means that security service companies are independent market competitors and have their own trade secrets. In the process of security services, security service companies must not only pay attention to protecting their own business secrets, but also must not infringe on others' business secrets.
First, the concept and scope of trade secrets
According to China's "Criminal Law", trade secrets refer to technical information and business information that are not known to the public, can bring economic benefits to the right holder, and are practical and subject to confidentiality measures taken by the right holder. Trade secrets are a type of intellectual property that is valuable and confidential. Value means that the trade secret can bring benefits to the right holder, and has economic value; confidentiality means that the trade secret has not been known to the public, and the right holder has adopted corresponding confidentiality measures.
The scope of protection of trade secrets is extensive. According to the State Administration for Industry and Commerce's "Provisions on Prohibition of Infringement of Trade Secrets," the interpretation of "technical information and business information" in the concept of trade secrets, trade secrets include design, procedures, product formulas, production processes, production methods, management know-how, Customer list, source information, production and marketing strategies, bidding base and content of bids.
Second, China's current legislation protects trade secrets
1.Protection from anti-unfair competition
In order to maintain the orderly development of the market economy, Chinese law regulates market competition through relevant legislation against unfair competition, which includes relevant provisions for protecting trade secrets. As a participant in market competition, security service companies must abide by relevant laws and regulations, and must not engage in unfair competition in a manner that infringes on the commercial secrets of others.
According to China's Anti-Unfair Competition Law, the following acts constitute a violation of trade secrets: (1) obtaining the trade secrets of the right holder by theft, inducement, coercion or other improper means; (2) disclosing, using, or allowing others to use The business secrets of the right holder obtained by the previous method; (3) Violating the agreement or the rights holder's requirements for maintaining business secrets, disclosing, using, or allowing others to use the business secrets in his possession. A third party who knows or should be aware of the illegal acts listed in the preceding paragraph and obtains, uses, or discloses the commercial secrets of others is deemed to have violated commercial secrets. For example, the customer list is a trade secret. If A security company illegally steals the customer list of B security company and steals the customer of B security company, it constitutes a violation of trade secrets and is an unfair competition act.
The right holder has an absolute right to the trade secret. The generation of this right is not based on the agreement. Anyone has the obligation not to infringe the right. This obligation is a legal obligation.
2.Protection from labor relations
The security guard may come into contact with the unit's trade secrets at work, and at the same time bear the obligation to keep the trade secrets confidential. This obligation of confidentiality arises from the employment relationship between security practitioners and security guards. There is an employment relationship between the security employment unit and the security officer. The security employment unit is the employer and the security officer is the worker. When the laborer completes the labor, the employer pays the laborer, provides benefits and insurance. This special relationship between workers and employers requires workers to be loyal to the employer. There are three contents of this faithful obligation: (1) obedience obligation, that is, the laborer should obey the command and supervision of the employer in the work; (2) confidentiality obligation, that is, the employee must not disclose the business secret of the employer; (3) enhance Obligation, that is, laborers should treat labor with careful attention in the labor process. This is also a requirement implied in workers' professional ethics, that is, employees should keep the business secrets of the unit. If employees disclose their own business secrets to others, it constitutes a violation of business secrets.
The confidentiality obligation of laborers stems from the establishment of labor relations. This confidentiality obligation is a statutory obligation. As long as a labor relationship is established between the two parties, regardless of the employer's explicit request or not, the laborer should keep business secrets for the employer.
3.Protect from the prohibition of competition
The prohibition of competition, also known as the restriction of competition or the avoidance of competition, means that the obligor must not engage in the same or similar business as the obligor within a certain period of time, that is, the obligor has the right to restrict the obligor's competitive behavior against itself. For example, the personnel of a security company has the company's customer resources, management methods, and technology. In order to prevent the person from starting a security company that has a competitive relationship with him after leaving the company, the security company can agree with the personnel on a certain competition prohibition. Deadline to limit their competitive behavior against themselves.
The prohibition of competition is actually a restriction on workers' labor rights. China's current law has clear regulations on the prohibition of labor competition. Article 22 of the Labor Law stipulates: "The parties to a labor contract may agree on matters concerning the protection of the business secrets of the employer in the labor contract." Article 23 of the Labor Contract Law provides that "the employer and the employee may In the labor contract, it is agreed to keep the employer's business secrets and intellectual property-related confidentiality matters. For employees who have the obligation of confidentiality, the employer may agree with the laborer in the labor contract or confidentiality agreement on the prohibition of competition, and It is agreed that after the labor contract is terminated or terminated, the employee shall be compensated economically on a monthly basis within the competition restriction period. If a worker violates the competition restriction agreement, he shall pay the employer a breach of contract in accordance with the contract. "Article 24 states: "Persons with restrictions on competition are limited to the senior management personnel, senior technical personnel and other personnel with confidentiality obligations of the employer. The scope, geographical area and duration of the restrictions on competition shall be agreed upon between the employer and the worker, and the agreement on competition restrictions shall not be violated The provisions of laws and regulations. After the termination or termination of the labor contract, the personnel specified in the preceding paragraph Other employers in competition with other units that produce or operate similar products or engage in similar business, or that have started business on their own to produce, operate, or engage in similar products or engage in similar business shall not exceed two years. "At the same time, according to the" Labor According to Article 25 of the Contract Law, the employer and the employee can agree on a clause for restricting competition, which can stipulate a penalty. That is, if a worker violates the agreement on competition restrictions, the employer should compensate the employer in accordance with the contract.
The prohibition of competition is different from the statutory duty of the worker: First, the worker's duty of confidentiality is based on the legal obligations or incidental obligations of the labor contract. Regardless of whether there is a clear agreement between the parties, the worker's service period and resignation In the future, they must bear the obligation to keep the employer's business secrets; while the laborer's obligation to prohibit competition is based on the agreement between the parties, and there is no obligation if there is no agreement. Secondly, there is no limit on the duration of the workers ’confidentiality obligations. As long as the trade secrets exist, the obligor ’s confidentiality obligations exist, and the performance of such obligations is not based on the payment of the confidentiality fee by the obligee; the obligation to prohibit competition is limited. In the case, the period of prohibition of on-the-job competition is the duration of the labor contract. The period of prohibition of on-the-job competition is agreed by the parties, and the employer must also pay a reasonable compensation fee for the employees who are forbidden from competition after leaving office.
Obligation not to infringe on personal privacy Personal privacy refers to all things that are unwilling to be known in the field of personal life. It is information that the parties do not want others to know, interfere with, or intrude. The composition of personal privacy has two requirements. One is that the information is purely personal and has nothing to do with public interest or group interest. The other is that the information is that the parties are unwilling to know about others.