CHINA Law and Practice Contributed by: Chuanhong Long, Ji Liu and Xiao Jin, CCPIT Patent and Trademark Law Office
8. Appeal 8.1 Appellate Procedure
9. Criminal Offences 9.1 Prosecution Process, Penalties and Defences To file a criminal lawsuit in a trade secret case, it is necessary to report the case to the police first and provide preliminary evidence of the trade secret held and the infringement of the trade secret. According to Article 219 of the Criminal Law, if the circumstances of the infringement of trade secrets are serious, the infringer shall be sen - tenced to fixed-term imprisonment of not more than three years together with a fine, or solely a fine; if the circumstances are particularly serious, the infringer shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined. The defences in criminal cases are basically the same as those in civil cases. However, it should be noted that the standard of proof in criminal cases is guilt beyond reasonable doubt, while civil cases adopt the high probability standard. Therefore, what is recognised as infringement in civil cases is not necessarily recognised as infringement in criminal cases. Holders of trade secrets can actively provide preliminary evi - dence, but once the police open a case, the investigation will be completed by them. 10. Alternative Dispute Resolution 10.1 Dispute Resolution Mechanisms Regarding alternative dispute resolution (ADR) for trade secret disputes, the more mature mech - anism in China is mediation, which includes not only court mediation but also people’s mediation and administrative mediation. The main pros of mediation include:
Either the plaintiff or the defendant, or both, if they are dissatisfied with the first-instance judgment, may appeal to the higher court. As explained in 5.4 Jurisdiction of the Courts , first-instance civil cases involving trade secret infringement are generally under the jurisdiction of intermediate people’s courts. Hence, for most cases, the appellate court is the corresponding provincial high court overseeing the intermediate court. For judgments, the appeal period is 15 days from the date of receipt of the judgment; for rulings, the appeal period is ten days from the date of receipt of the ruling, and for a party that has no domicile in China, the appeal period is 30 days from the date of receiving the judgment or ruling. The trial period of the second instance is three months, which can be extended. The appeal procedure will not vary between courts. 8.2 Factual or Legal Review The court of second instance focuses more on legal issues, but usually also ascertains factual issues. If the second-instance court finds out that the basic facts determined by the first- instance judgment are unclear, it will usually send it back to the first-instance court for retrial; if other facts are unclear, the second-instance court can also revise the judgment after find - ing out the facts. Usually, the second instance is not de novo and will be tried according to the appellant’s grounds of appeal. For issues that need to be reserved, the appellant should clearly record it in the grounds of appeal. For most trade secret cases, the court of second instance does not merely conduct a written hearing, instead, it usually gives both parties an opportunity to present and debate.
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