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Title Guidelines for Handling Trade Secret Cases in the Prosecuting AuthorityCH
Announced Date 2016.04.19
Amended Date2020.11.19
Legislative 1.Adopted and Promulgated by the Ministry of Justice on April 19, 2016
2.Adopted and Promulgated by the Ministry of Justice on November 19, 2020
1. These guidelines are specially formulated for use by the prosecuting authority when handling trade secret cases to assure their due care.
2. If a person commits a crime under Article 13-1 or 13-2 of the Trade Secrets Act and one of the following circumstances is met, the case is a major trade secret case:
(1) The trade secret is owned by a public company or a foreign company.
(2) The case is related to national security, economic development, or it is necessary for the sake of maintaining industrial ethics, competitive order and reconciling public interest.
(3) The case is reported by the judicial police authorities to request an investigation.
(4) The case is not classified as a major trade secret case at the time of making assignments, but the Prosecutor recognizes that there are circumstances, as listed in the preceding three subparagraphs, before the end of the investigation and submits the case to the Chief Prosecutor for approval.
(5) Other situations, as approved by the Chief Prosecutor of any prosecuting authority.
3. The prosecuting authority should assign designated prosecutors to investigate major trade secret cases.
The Ministry of Justice or other authorities shall hold seminars related to the Trade Secrets Act, and shall give priority in participant selection to designated prosecutors in such seminars.
4. When handling trade secret cases, the prosecuting authority should make assignments as soon as possible after the receipt of such cases; for major trade secret cases, as listed in Item 2, they shall be assigned to a designated prosecutor immediately.
5. When the prosecutor handles a major trade secret case, it is advisable that the complainant, or the victim, fills in the Explanation Form (as shown in the appendix), then appear in court together with a professional personnel. When necessary, the prosecutor shall interrogate the complainant, the victim, or the professional personnel as a witness or an expert witness.
6. In the investigation of a trade secret case, the prosecutor should consider the progress of the investigation and need of the case and take necessary measures including notification upon arrival and departure at the custom, or temporary detention measures on the accused; if the accused is found to be under serious suspicion of committing a crime, a restriction on border/island exit may be imposed, as required, pursuant to the provisions of Article 93-2 through Article 93-6 of the Code of Criminal Procedure.
7. When investigating a trade secret case, the prosecutor may, when required, contact other relevant authorities for personnel assistance, or the provision of money flow analysis reports.
8. In the investigative search of a trade secret case, the prosecutor should assign prosecutor investigator, or juridical police or juridical police officer with related expertise to assist and audio-visually record the search.
When conducting a search, if any relevant properties that should be seized for this case are found, which are not specified in the search warrant, they may also be seized. Under the circumstances, as stipulated in Paragraphs 1 and 2 of Article 131 of the Code of Criminal Procedure, the prosecutor may conduct a search directly, or with the voluntary consent of the person being searched.
The complainant, the agent ad litem, or the victim can only provide necessary assistance in identifying when present in the search.
9. When conducting seizure of property in a trade secret case, the prosecutor should take the principle of proportion and protection of evidence into consideration. When seizing digital evidence, care should be taken to establish the authentication and non-repudiation of the digital evidence.
10. When the complainant, the suspect, the accused or the defender has been approved for an application for the protection of the evidence to the prosecutor, the prosecutor should give the applicant an opportunity to state his/her opinions, in addition to properly maintaining the protection of the evidence, except when the prosecutor recognizes that such action may hinder the protection of the evidence.
When investigating a trade secret case, if the prosecutor believes that the complainant, or the victim, is likely to contaminate evidence, or take the opportunity to pry on the target of investigative search, or a third party, the prosecutor shall take preventive measures, as required.
11. When investigating a trade secret case, the prosecutor may prompt the complainant, the victim, the accused, and other interested parties, to generate a confidentiality agreement, agreeing not to use or disclose the investigative contents to which they have access.
In order to smoothly carry out the investigation procedures, the prosecutor shall maintain the confidentiality of the investigation, discover the truth, and maintain the secrecy of the evidence. As required, the prosecutor may ex officio issue an investigation confidentiality protective order to those who have access to the investigation contents.
Before issuing an investigation confidentiality protective order, the prosecutor may hear the opinions of the complainant, the victim or his/her agent ad litem, the accused or his/her defender, the owner, holder, and custodian of the relevant information to confirm such persons are subject to the investigation confidentiality protective order and such contents of the investigation that should be kept confidential.
The judicial police, judicial police officers, and civil servants participating in investigation procedures are under an obligation of confidentiality in their official capacity, and as such, are not subject to the investigation confidentiality protective order.
12. An investigation confidentiality protective order prohibits and restricts the use of such contents of an investigation that should be kept confidential for purposes other than the investigative procedures, or prohibits disclosure to persons not subject to an investigation confidentiality protective order. If it is for purpose of prevention or precluding the infringement of trade secrets, the complainants, or the victims, should seek relief of such in accordance with civil procedures.
13. When a prosecutor verbally issues an investigation confidentiality protective order, he or she shall inform the persons subject to the said order in person of the matters set forth in Article 14-2, Paragraph 4 of the Trade Secrets Act, and specify the event in the written transcript.
The investigation confidentiality protective order, as mentioned in the preceding paragraph, shall take effect from the time of verbal notification, and the prosecutor shall prepare a written investigation confidentiality protective order within seven (7) days, paying attention that the content is consistent with the transcript, then shall serve it in accordance with the law.
When issuing an investigation confidentiality protective order, the prosecutor shall give the owner of the trade secret an opportunity to state his/her opinions; if the order is issued in writing, it shall be done before serving the order and sending the notification. This rule does not apply, if the owner of the trade secret is unknown, cannot be notified, or there are some other factual impediments that prevent him or her from making a statement, or if the opportunity to make a statement is given at the time of verbal issuance of such an order.
After the issuance of an investigation confidentiality protective order, a separate case file should be set up, and a copy of the order shall be kept; its relevant file information shall be appropriately handled after the case is closed.
14. When the reasons for secrecy during an investigation are eliminated, the prosecutor may revoke the investigation confidentiality protective order ex officio. When the contents to be kept confidential during an investigation are reduced, the prosecutor may change the investigation confidentiality protective order ex officio.
If there is a need to increase the persons subject to an investigation confidentiality protective order, or to expand the investigative contents, a separate investigation confidentiality protective order may be issued for the increased or expanded portion; the increased or expanded portion shall not be challenged.
15. When it is necessary for a prosecutor to request mutual legal assistance in criminal matters during an investigation of a trade secret case, the prosecutor shall pay attention to the procedures stipulated in the Mutual Legal Assistance in Criminal Matters Act.
When collecting evidence in an overseas investigation involves user data or digital evidence kept by multinational electronic communications or network service providers, such investigations may be handled through points of contact, as designated by the prosecuting authority.
The provisions, as stipulated in Item 5 through the preceding item, are also applicable when handling requests of mutual legal assistance in criminal matters from overseas governments, agencies, international organizations, Mainland China, Hong Kong or Macau.
16. When investigating a trade secret case, the prosecutor may, when required, refer to the expert consultation guidelines of the prosecuting authority, and consult experts and competent authorities on the professional portion of the case to assist in clarifying the disputes, scope, and analyzing the seized data. The prosecutor shall instruct the experts and competent authorities not to disclose or reveal the investigation procedures and contents, and may issue an investigation confidentiality protective order, when required.
17. When investigating a trade secret case, if such a crime falls under the provisions, as stipulated in Article 13-2 of the Trade Secrets Act, the prosecutor shall pay special attention to the provisions of the Witness Protection Act.
18. When a prosecutor finishes investigating the evidence in a trade secret case, and believes that an indictment or a summary judgment should be filed, the prosecutor should close the investigation as soon as possible and urge the court clerk to send the relevant documents to the court for trial.
19. If litigation information involves trade secrets, it should be handled appropriately, as required.
When a case is referred to a court for trial, if it is deemed necessary to restrict the accused and his/her defender from reviewing, transcribing, reproducing, or photographing the documents, or if the prosecutor has issued an investigation confidentiality protective order, such issues may be stated in the letter of referral for the court's attention. After a case is pending to a court, a prosecutor may, if necessary, apply to such court for a closed trial in accordance with the provisions of the Intellectual Property Case Adjudication Act, or apply to such court for a confidentiality preservation order.
If an investigation confidentiality protective order is issued, the prosecutor shall notify, when the case is in prosecution, the owner of the trade secret and the persons subject to the investigation confidentiality protective order of issues relevant to the effect of prosecution, and inform them such matters as stipulated in Article 14-3 Paragraphs 4 and 5 of the Trade Secrets Act.
20. When a trade secret case is heard in a court, the prosecutor should consider the opinions of the complainant or the victim, and then express specific opinions, for the court’s reference, on sentencing and confiscation, during the oral argument proceeding.
21. In case of a violation of a trade secret, when it is deemed necessary to publish appropriate news in order to safeguard public interest, or protect legal rights and interests, it is necessary to listen to the opinions of the complainant or the victim, and to avoid revealing the actual content of the trade secret.
22. In addition to notifying concerned parties about returning the confiscated or seized properties of a trade secret case, after a disposition of non-prosecution or deferred prosecution is finalized, or returning properties that are not covered by the effect of prosecution, the properties that cannot be returned or that should be confiscated according to the law, shall be destroyed or discarded, and the rest of the documents and information shall be appropriately processed.
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