Trade Secret vs Confidential Information in China

Confidential-by-contract is broader and weaker; trade secret is narrower and stronger.

You can contract to keep almost any non-public business information confidential. Breach then sounds in contract: damages, maybe an agreed agreed damages. AUCL trade-secret status additionally requires that the information is not known to the public, has commercial value, and was kept with corresponding measures. That status supports injunctions, AUCL damages, administrative penalties and, in serious cases, crime — including against some non-signers. Use both layers. Do not plead every NDA breach as a trade secret. Employee confidentiality and factory NNN pages sit beside this distinction.

The classification screen

4 questions before you choose the route.

This page identifies the right question and evidence. It does not determine the legal outcome on a reader’s facts.

Is there a signed confidentiality duty?

Contract, handbook, NNN — identify the parties bound.

Contract

Would the information pass the three AUCL limbs?

Public? Valuable? Measures?

AUCL

Who is the respondent — a signer or a stranger?

Contract does not bind the world; AUCL can reach more actors.

Defendant

What remedy do you actually need?

Money against a signer vs stop-use against a competitor.

Remedy

Working rule: You can contract to keep almost any non-public business information confidential. Breach then sounds in contract: damages, maybe an agreed agreed damages.

What changes the answer

The signal ledger.

These facts move the question beyond a label and into a product, money-flow and control analysis.

Signal

Ask the operating question

Why it changes the route

Public but still in an NDA

Is the ‘secret’ in a published patent or user manual?

Contract might still be argued; AUCL trade secret is gone.

Non-signer competitor

Did a stranger receive the files from an employee?

You need AUCL or criminal law, not only the NDA.

Everything labelled confidential

Did you treat lunch menus like source code?

Over-pleading undermines the real secrets.

Prepare before you escalate

Bring a compact evidence docket—not a pitch deck.

Give a compliance team or counsel the operating facts that reveal the perimeter.

01Contract layerNDA/NNN/handbook and who signed.

02AUCL layerNon-public, value, measures chronology.

03Respondent mapSigners, employees, factories, later competitors.

04Remedy goalDamages, injunction, takedown or criminal referral.

Common confusions

Questions people ask before they build.

Short answers for orientation. The right result can change with the service model and current rules.

If the NDA is strong, do we need trade-secret law?

Yes, if you need to stop a non-signer or want AUCL/criminal tools. The NDA is necessary but not always sufficient.

Can information be both?

Often yes. Plead both, but prove the three limbs only for what is truly a secret.

Primary authorities

Reviewed sources support orientation, not a fact-specific assessment.

National laws database (NPC)

Anti-Unfair Competition Law (gov.cn)

Supreme People’s Court