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英譯法規內容

法規名稱(Title) Trade Secrets Act Ch
公發布日(Date) 2020.01.15
法規沿革(Legislative) 1.Promulgated on 17 January 1996 and effective on 19 January 1996
2.Promulgated on 30 January 2013 and effective on 1 February 2013
3.Promulgated on 15 January 2020 and effective on 17 January 2020
法規內文(Content)

Article 1

This Act is enacted to protect trade secrets, maintain industrial ethics and order in competition, and

balance societal and public interests. Matters not provided for in this Act shall be governed by other

laws.

 

Article 2

The term " trade secret " as used in this Act shall mean any method, technique, process, formula,

program, design, or other information that may be used in the course of production, sales, or

operations, and also meet the following requirements:

1.It is not known to persons generally involved in the information of this type;

2.It has economic value, actual or potential, due to its secretive nature; and

3.Its owner has taken reasonable measures to maintain its secrecy.

 

Article 3

If a trade secret is the result of research or development by an employee during the performance of

employment, the trade secret shall belong to the employer unless otherwise provided for in a

contract, and in which case the contract shall prevail.

If a trade secret is the result of research or development by an employee other than during the

performance of employment, the trade secret shall belong to the employee. However, if the trade

secret is the result of utilizing the employer's resources or experience, the employer may make use

of such a trade secret in the employer's business after paying a reasonable compensation to the

employee.

 

Article 4

Where one provides funding and contracts another to conduct research or development that resulted

in a trade secret, the ownership of the trade secret shall be determined by the terms of the contract.

If the ownership is not specified in the contract, the trade secret shall belong to the contracted party;

however, the contracting party shall be entitled to make use of such trade secret within the

contracting party's business.

 

Article 5

Where a trade secret is the result of joint research or development by two or more parties, the

respective shares in the ownership of the trade secret shall be determined by contract. In the absence

of a contract, an equal share of the ownership shall be presumed.

 

Article 6

A trade secret may be assigned in whole or in part, or jointly owned. Any use or disposition of a

jointly-owned trade secret shall be unanimously approved by all co-owners in the absence of a

contractual provision. However, no co-owner shall refuse consent without proper justification. No

co-owner may assign its share of the ownership without the consent of the remaining co-owners ,

unless otherwise provided for in a contract, and in which case the contract shall prevail.

 

Article 7

An owner of a trade secret may grant a license to another for the use of the trade secret. The territory,

term, contents, methods of use or other matters in connection with the license shall be determined

by the contract between the parties.

The licensee as referred to in the preceding paragraph shall not sub-license the licensed trade secret

without the consent of the trade secret owner. No co-owner shall grant a license to another for the

use of the jointly-owned trade secret without the unanimous consent of the remaining co-owners.

However, no co-owner shall refuse consent without proper justification.

 

Article 8

A trade secret shall not be used as the subject matter of a pledge or compulsory execution.

 

Article 9

No government employee shall use or disclose without due cause any trade secrets of others known

or obtained through the performance of his official duties. No parties, representatives of the parties,

advocates, expert witnesses, witnesses, and other parties related to the case shall use or disclose

without due cause any trade secrets of others, known or obtained by virtue of a judicial investigation

or proceeding. The provision of the preceding paragraph shall apply mutatis mutandis to arbitrators

and other relevant parties involved in arbitration matters.

 

Article 10

Any of the following acts shall be deemed as a misappropriation of a trade secret:
1. To acquire a trade secret by improper means;
2. To acquire, use, or disclose a trade secret as defined in the preceding
item knowingly or unknowingly due to gross negligence;
3. To use or disclose an acquired trade secret knowing, or not knowing due to
gross negligence, that it is a trade secret as defined in item one;
4. To use or disclose by improper means a legally acquired trade secret; or
5. To use or to disclose without due cause a trade secret to which the law
imposes a duty to maintain secrecy
The term "improper means " as referred to in the preceding paragraph shall mean theft,

fraud ,coercion, bribery, unauthorized reproduction ,breach of an obligation to maintain

secrecy ,inducement of others to breach an obligation to maintain secrecy, or any other similar

means.

 

Article 11

If a trade secret is misappropriated, the injured party may request for the removal of such

misappropriation. If there is a likelihood of misappropriation ,a prevention may be requested . When

requesting for a remedy available under the preceding paragraph, the injured party may request for

the destruction or other necessary dispositions of products generated from the misappropriation or

items used exclusively in the misappropriation.

 

Article 12

One who intentionally or negligently misappropriates another's trade secret shall be liable for

damages. If two or more parties jointly misappropriate, such parties shall be jointly and severally

liable. The right to claim for damages as referred to in the preceding paragraph shall be extinguished

if the right is not exercised within two (2)years from the date when the owner of the right has

knowledge of both the act of misappropriation and the identity of the party liable for the

damages ,or within ten (10) years from the act of misappropriation.

 

Article 13

An injured party may choose any of the following provisions to request for damages in accordance

with the preceding Article:

1.To make a claim based upon Article 216 of the Civil Code. However, if the injured party is unable

to prove the amount of damages, the party may take as damages the amount of profits normally

expected from the use of the trade secret minus the amount of profits earned after the

misappropriation; or

2.To request for the profits earned through the act of misappropriation from the one who

misappropriated. However, if the one who misappropriated is unable to prove the costs or the

necessary expenses, the total income gained from the act(s) of misappropriation shall be deemed the

profits .

Based on the provisions set forth in the preceding paragraph, if an act of misappropriation is found

to be intentional, the court may, at the request of the injured party and by taking into consideration

the circumstances of the misappropriation, award an amount greater than the actual damages,

provided that the amount shall not exceed three times the amount of the proven damages.

 

Article 13-1

Any person committing an act falling under any of the following circumstancesfor the purpose of an

illicitgain for himself/herself or for a third person, or inflicting a loss onthe holder of a trade secret

shall be sentenced to a maximum of 5 years imprisonment or short-term imprisonment, in addition

thereto, a fine between NT$1 million and NT$10 million may be imposed:

1. Acquiring a trade secret by an act of theft, embezzlement, fraud, threat, unauthorized

reproduction, or other wrongful means, or using or disclosing a trade secret so acquired.

2. Committing an unauthorized reproduction, usage, or disclosure of a trade secret known or

possessed.
3. Failing to delete or destroy a possessed trade secret as the trade secret holder orders, or disguising

it.

4. Any person knowingly acquires, uses or discloses a trade secret known or possessed by others is

under circumstances prescribed in the preceding 3 subparagraphs.

An attempt to commit a crimespecifiedin the preceding paragraph is punishable.

In case a fine is to be imposed, if the gain obtained by the offender exceeds the maximum fine, such

fine may be increased within the extent of 3 times of the gain.

 

Article 13-2

Any person committing a crime prescribed in the first paragraph of the preceding article for the

purpose of using the trade secretin foreign jurisdictions, mainland China, Hong Kong, or Macau

shall be sentenced to imprisonment between 1 year and 10 years, in addition thereto, a fine between

NT$3 million and NT$50 million may be imposed.

An attempt to commit a crimespecified in the preceding paragraph is punishable.

In case a fine is to be imposed, if the gain obtained by the offender exceeds the maximum fine, such

fine may be increased within the extent of 2 to 10 times of the gain.

 

Article 13-3

Prosecution for a crime specified in Article 13-1maybe instituted only upon a complaint.

The filing or withdrawal of a complaint against one of several co-offenders shall not be considered

to be a filing or withdrawal ofacomplaint against the others.

In case a civil servant or a former civil servant who knows or possesses others’ trade secrets within

the scope of his/her authority or employment and intentionally commits a crime prescribed in the

preceding 2 articles shall be sentenced to the punishment prescribed for such an offense by

increasing it up to one half.

 

Article 13-4

Where the representative of a juristic person, the agent,employee or any other staff of a juristic

person or natural person commits any of the crimes prescribed in Article 13-1 or 13-2 in the course

of business, not only the actor,but the juristic person or the natural person shall be punished with the

fine prescribed in the Article. However, if the representative of a juristic person or natural person

has done his/her utmost to prevent a crime from being committed, the juristic person or natural

person shall not be punished.

 

Article 13-5

An unrecognized foreign juridical person may file a complaint, initiate a private prosecution, or

institute a civil suit in respect of matters governed by this Act.

 

Article 14

To try trade secrets suits, the court may establish a special tribunal or appoint a designated person(s)

to administer the case. If assertions or defenses advanced by parties to a litigation relate to trade

secrets, and at the request of the parties, the court may, as it deems appropriate, close the trial to the

public and/or restrict access to the files of the litigation related information.

 

Article 14-1

A prosecutor investigating a trade secret case may, if he/she deems it necessary, issue an

investigation confidentiality protective order to the suspects, the defendants, the victims, the

complainants, the agents ad litem, the defense attorneys, expert witnesses, witnesses, or other

associated persons having access to the investigation contents.

The person(s) subject to the investigation confidentiality protective order must not engage in the

following acts in respect of the investigation contents:

1. Usage for purposes other than the investigation procedures; and

2. Revealing contents to the person(s) not subject to the investigation confidentiality protective

order.

The provisions as set forth in the preceding paragraph shall not apply to the person(s) subject to the

investigation confidentiality protective order who has already acquired or possessed the

investigation contents prior to the investigation.

 

Article 14-2

An investigation confidentiality protective order shall be issued in writing or verbally. Where the

order is issued verbally, the person(s) it is issued to shall be notified in person and a recordation

thereof shall be made. A trade secret owner shall be afforded an opportunity to express opinions.

The order in writing shall be produced within seven days.

The order in writing as set forth in the preceding paragraph shall be served upon the person(s)

subject to the investigation confidentiality protective order and a notification thereof shall be made

to the trade secret owner(s). Prior to serving and notification, the trade secret owner(s) shall be

afforded opportunities to express opinions. This will not apply where the trade secret owner(s) has

already been afforded opportunities to express opinions pursuant to the provisions of the preceding

paragraph.

Where it is issued in writing, the order takes effect on the day it is served upon the person(s) subject

to the investigation confidentiality protective order. Where the order is issued verbally, it takes

effect at the time the notification thereof is made.

An investigation confidentiality protective order shall clearly record the following items:

1. The person(s) subject to such order;

2. The investigation contents that should be kept confidential;

3. The prohibited or restricted acts as stipulated in Paragraph 2 of the preceding article; and

4. The consequences of violating the order.

 

Article 14-3

During the investigation, if the duty of confidentiality is extinguished or if it is necessary to amend

the contents of the order, the prosecutor may ex officio cancel or amend his/her investigation

confidentiality protective order.

If the deferred prosecution or non-prosecution is finalized for a case or if part of the investigation

confidentiality protective order is not within the scope of the prosecution, the prosecutor may ex

officio or upon request by the person(s) subject to the order, cancel or amend his/her investigation

confidentiality protective order.

The prosecutor cancelling or amending the investigation confidentiality protective order pursuant to

the preceding two paragraphs may afford the person(s) subject to such order and the trade secret

owner(s) opportunities to express opinions. The cancelling or amending disposition shall be made in

writing and served upon the person(s) subject to the order and the trade secret owner(s).

After a case is being prosecuted, the prosecutor shall notify the trade secret owner(s) and the

person(s) subject to the investigation confidentiality protective order of the order’s involvement in

the effect of the prosecution and its scope, as well as of the rights and interests associated with the

confidentiality preservation order and the investigation confidentiality protective order. The trade

secret owner(s) or the prosecutor may, pursuant to the provisions of the Intellectual Property Case

Adjudication Act, file a request with the court for the issuance of a confidentiality preservation order.

The investigation confidentiality protective order within the scope of the prosecution shall, within

the scope of a motion, lose its effectiveness on the date a ruling granting a confidentiality

preservation order in investigation becomes final.

After a case is being prosecuted, if the trade secret owner(s) or prosecutor does not file a request

with the court for the confidentiality preservation order within 30 days from the day the action case

has been pending to court, the court may, upon request by the person(s) subject to the confidentiality

protective order or the prosecutor, cancel the investigation confidentiality protective order. The

investigation confidentiality protective order that is involved in the effect of the prosecution and its

scope shall, within the scope of cancellation allowed for by the court, lose its effectiveness starting

from the date on which a court ruling becomes final.

Prior to finalizing its ruling, the court shall consult the trade secret owner(s) and prosecutor. The

ruling as set forth in the preceding paragraph shall be served upon the trade secret owner(s), the

person(s) subject to the investigation confidentiality protective order, and the prosecutor.

The person(s) subject to the investigation confidentiality protective order or the trade secret owner(s)

may petition the prosecutor’s ruling as set forth in Paragraphs 1 and 2. The prosecutor, the person(s)

subject to the investigation confidentiality protective order, or the trade secret owner(s) may file an

interlocutory appeal against the court ruling as set forth in Paragraph 5.

The provisions in Articles 403 through 419 of the Code of Criminal Procedure shall apply mutatis

mutandis to the petition and interlocutory appeal procedures as set forth in the preceding paragraph.

 

Article 14-4

A person violating an investigation confidentiality protective order shall be punished by

imprisonment for up to three years, short-term imprisonment, and/or a fine of up to NT$1 million.

The preceding paragraph shall apply where the violation of the investigation confidentiality

protective order occurs in other countries, China, Hong Kong, or Macau, regardless whether the

offense is punishable or not under the law of the land where the crime is committed.

 

Article 15

A foreign national's trade secret(s) will not receive protection in the R.O.C., if the foreign national's

home country does not conclude with the ROC an international treaty for protection of trade

secret(s), or a treaty or an agreement for reciprocal protection of trade secret(s), or does not provide

protection to the trade secrets owned by R.O.C. nationals.

 

Article 16

This Act shall come into force from the date of promulgation.