Enforcing Individual Technical Confidentiality Covenants under Chinese Labor Law
Enforcing individual technical confidentiality covenants under PRC law relies on explicit technical boundaries, notarized logs, and parallel civil actions.
Notary Preservation
Meaning
Administrative acts performed by a state authorized notary office provide a means to certify the authenticity and integrity of evidence before it is presented in a court of law. This notary preservation is a common and highly effective strategy in China for securing digital and physical proof of infringement, breach of contract or other illegal activities. The process involves a notary public witnessing the acquisition of the evidence, such as the purchase of a counterfeit product or the downloading of an infringing website.
The notary then issues a formal certificate that describes the time, location and methods used, providing a high level of credibility to the evidence. In the national judicial system, evidence that has been notarized is generally accepted as true unless the opposing party can provide strong evidence to the contrary. This makes notarization a primary tool for companies looking to build a solid case against competitors or former employees who have stolen trade secrets.
Certification Method
Systematic approach used by the notary office to document the discovery and collection of evidence ensures that the facts are captured accurately and objectively. When notary preservation is requested, the official accompanies the claimant or their lawyer to the site where the infringement is occurring. If the evidence is digital, the notary will witness the entire process of logging onto a computer, navigating to the relevant site and saving the screenshots or source code.
For physical evidence, the notary will observe the transaction, take photographs and seal the purchased item in a tamper proof bag. The resulting certificate includes a detailed narrative of these events, often accompanied by the original documents or media as exhibits. This method of independent observation eliminates the risk of the claimant being accused of fabricating or altering the evidence after the fact.
The notary’s role is to act as a neutral third party who can verify exactly what was seen and heard at a specific moment in time. This formal procedure is a key part of the evidentiary standards required for successful litigation in the local courts.
Evidentiary Power
Weight given to notarized documents by the judicial authorities provides a significant procedural advantage to the party that uses this service. Under the civil procedure law, the court must recognize the facts stated in a notary certificate as being prima facie evidence of the truth. This means that the burden of proof effectively shifts to the respondent, who must find a way to discredit the notary’s work if they wish to challenge the evidence.
Such challenges are difficult because the notary is a state sanctioned official whose primary duty is to ensure the integrity of the legal process. The use of notary preservation can also speed up the trial process by reducing the need for lengthy testimony from witnesses about how the evidence was obtained. In many cases, the presence of a notarized certificate is enough to convince a defendant to settle the case rather than face a certain defeat in court.
This power makes the notary office one of the most important institutions in the protection of commercial rights and intellectual property. Businesses often invest in these services at the very beginning of an investigation to ensure their position is as strong as possible.
Procedural Limit
Boundaries on the authority of the notary office and the scope of their certification activities ensure that the process remains fair and within the law. Notary preservation is limited to the recording of observable facts and does not involve the interpretation of legal rights or the assessment of damages. The notary cannot give an opinion on whether an item is actually infringing or whether a contract has been breached.
Their role is purely to document what is happening at the time of the preservation act. Furthermore, the notary must follow strict internal rules regarding the jurisdiction of their office and the types of evidence they are allowed to handle. For example, some offices may not have the technical equipment to preserve complex digital data, requiring the claimant to find a more specialized branch.
The cost of these services can also be a factor, as fees are often based on the number of hours spent and the volume of material to be certified. If a notary fails to follow the proper procedures, their certificate may be challenged and potentially dismissed by the court. These limitations maintain the balance between the need for reliable evidence and the right of all parties to a fair and impartial trial.