Confidential law of the State classified experts refer to the trade secret boundary still vague

Ma Hui twists, eventually passed. April 29, the 14th session of the NPC Standing Committee closed.　　In the afternoon plenary meeting, the revised "People's Republic of China conservative state secrets Law" by 144 votes in favour, 3 votes against, 3 abstentions.　　The existing Secrecy Act, which has been in operation since May 1, 1989, has been disconnected from the actual demand for more than more than 20 years. "At present, there are some contradictory conflicts between information openness and information security, and the system of State secret identification, alteration and dissolution needs to be perfected."　　Du, deputy director of the State Secrecy Bureau.　　Prior to that, the revised draft was revised on the basis of various views, resulting in three draft reviews submitted to the Standing Committee for consideration. The definition of state secrets has been the focus of attention in all the previous deliberations.　　Prior to the revision of the secrecy law, as the definition of state secrecy is too broad and principle, almost all matters can be incorporated into state secrets, and there is no strict regulation or restriction on the qualification and authority of the subject. The "Rio Tinto case", which erupted last year, is a dramatic way of showing the omission to the public.　　It raises the discussion about how to define the state secret and the business secret in the commercial field and whether the enterprise has the right of secrecy. The new amended secrecy law provides for the above issues.　　According to Du, the law will be implemented by October 1 this year.　　Three types of secrecy in the adoption of the Privacy Act, detailed details of the seven "related to national security and interests" matters, in order to clarify the scope of "State secrets." The fourth is "secret matters in the national economy and social development", and the fifth is "The secret matters in science and technology". Legal experts have said that because many of these items are trade secrets, whether they can be deleted and classified as "trade secrets".　　But in the end, that opinion was not adopted by lawmakers. "If it is a business secret, it is managed by the enterprise." But if it is a state secret, it should be administered according to the secrets of the state.　　said the person.　　In the report of the National People's Congress Legal Committee on the review of the Confidentiality Law (revised draft), some standing Committee members and departments suggested that "the scope of the state secrets stipulated in the revised draft is broad, the standard of secrecy is not clear, and the implementation is not easy to master".　　The discussion on this issue is covered in the three revisions of the secrecy law.　　In the previous review, the provisions on the state secrets are still relatively broad, in the consultation, there are some members and departments clearly said "not easy to grasp the implementation", but also suggested that the secret matters should distinguish between state secrets, Work Secrets and trade secrets. In the review of the revised draft, which was to be considered by the Standing Committee at the following session, there have been important changes to the above issues, distinguishing secret matters into state secrets, Work Secrets and trade secrets, and making clear provisions on what is a state secret. The National People's Congress Law Committee in conjunction with relevant departments, and proposed in the revised draft twoReview article Nineth of the first paragraph to add "Matters relating to national security and interests, once disclosed may damage the state in the political, economic, national defense and other areas of security and interests, should be identified as state secrets" legal provisions.　　The boundaries of trade secrets are still vague. According to the relevant people familiar with the drafting process, in the revised draft, in addition to state secrets, there is no separate provision for work secrets, but in accordance with the corresponding provisions of the civil Service Law. The most difficult to identify and the world, is a trade secret.　　Although the commercial secret mainly involves the commercial interest aspect question, but some trade secret itself is the state secret, especially the central enterprises in the outward negotiation, the bidding process, some mark itself has the duality, one heavy is the state secret, one heavy is the trade secret.　　This amendment, which refers to the secrecy law, does not revolve around the "Rio Tinto case". In July 2009, the Shanghai State Security Administration arrested 4 employees of Rio Tinto's Shanghai office, including Stern Hu, for allegedly stealing China's state secrets. At the time, one of the main points of contention was the nature of the case.　　The Rio Tinto defense lawyers said the illegal acquisition of the state-owned steel company's trade secrets, which in criminal law is not a state secret scope, does not constitute a threat to national security. March 29, the troubled nearly one-year "Rio Tinto case" finally fell to the curtain.　　Shanghai's first Intermediate People's Court made a judgment, Hu and other four persons were found guilty of bribery of non-state workers, infringement of commercial secrets, respectively sentenced to 14 years to 7 years, forfeiture of property and fine RMB 700,000 to 5.2 million yuan.　　It is noteworthy that the court was eventually convicted of "crimes against trade secrets" rather than "suspected theft of state secrets". "This case has a certain impact on the drafting of the relevant provisions of the conservative state secret law, which is being revised, and many experts also believe that there should be a clear definition of what is trade secret and what is state secrets."　　"A legal expert who declined to be named, who was involved in the revised privacy law, said to the correspondent.　　Zhou, a researcher at the Institute of Law at the Chinese Academy of Social Sciences, said that because China has not yet formulated a special trade secret protection Law, encountered problems, generally in accordance with the No. 219 of the Penal Code "infringement of commercial secrets" punishable, or directly in accordance with the conservative state secrets law. In some market economies developed countries, there are special laws to protect trade secrets, alone in terms of legislation, China and developed countries still have a small gap.　　This has also led to a consequence that, in the event of a problem involving the disclosure of trade secrets, it is often difficult for law enforcers to find applicable legal provisions for sentencing. "Now some countries in the world insist that China is not a market economy country, and one of the main views is that China defines trade secrets as state secrets." "I think there should be a change in this, not handhold," Zhou said. "Central enterprises can still follow the legal state secrets and how to distinguish between trade secrets and state secrets are directly related to another key issue is: state-owned enterprise, especially the core is a fixed subject?" Whether they haveA secret right? According to the law, it is a kind of extension of state power, whether state-owned enterprises or private enterprises, is not the state authority. "In the second review, in order to rectify the past, the lack of clear, dense too excessive problem, for the right to a secret, in fact, is collected."　　"said Zhou, a researcher at the Institute of Law, China Academy of Social Sciences. The passage of the revised Confidentiality Act 13th also clearly stipulates: "Central State organs, provincial organs and authorized organs, units can determine the top-secret level, confidential level and secret level of state secrets."　　"But because of the current management system, state-owned enterprises, especially the central enterprise has a certain level of administration, which makes this kind of enterprises also have the right to a secret." "Now extending to some units is actually an authorization. A person familiar with the drafting process said.　　For example, Sinopec, PetroChina and state-owned commercial banks, these enterprises are related to national economic security strategic-type central enterprise, according to its administrative level, have the authority to designate state secrets.　　However, with the reform of state-owned enterprises, the abolition of administrative level has become a focus of the future reform, then these state-owned enterprises, especially the central enterprise, whether the future still has the right to a secret, it becomes quite complex problems. Recently, SASAC on its website published the "Central Enterprise trade secret protection interim provisions."　　According to the relevant sources of SASAC, the regulation is based on "extensive research, repeated discussion, in-depth study" on the basis of a period of more than six months to draft, is China's first department of Trade secret Protection Department regulations. In the interim provisions, the central enterprises themselves have the right to secrecy of trade secrets. The 12th article stipulates: "The Central enterprise trade secret and its classification, the confidentiality period and the knowledge scope, by the business unit which produces the matter formulates, the competent leadership approval, the confidential office records." "And for State secrets, in the 11th article stipulates:" Because of the adjustment of the scope of state secrecy, the central enterprise business secret needs to be changed to state secrets, it must be determined as a state secret according to legal procedures. "This is the process of clarifying the central enterprises for trade secrets and state secrets between the different right to secrecy." With the implementation of the new law, the organs and units responsible for secrecy shall, in accordance with the provisions, conduct a clean-up of the determination, alteration and dissolution of the State secrets.　　This means that, including the central enterprises, many of the subject, will redefine their own in the field of confidentiality of their new role.　　However, some minded further suggested that the subject with the right of privacy should emphasize professionalism in the process of the encryption. "We hope to have a scientific and dense system, which is a highly professional and professional problem." That is to say, the secret must be scientific and fixed, the set should be set, should not be set. "In the view of the members of the Shengzu committee, it is important to ensure the seriousness of this law, and to keep it secret."