[Direct answer]In the Beijing area, if a breach occurs—the penalty clause is just a preset way of defining breach of contract liability. The absence of a written clause doesn't mean there's no liability: if trade secrets are leaked or confidentiality agreements are violated, the party can still demand continued performance of the confidentiality obligation, compensation for actual losses (including lost profits) and reasonable legal expenses. Proving actual losses is crucial—the R&D costs of the secret, the value of the license, lost orders, and infringement profits are all quantifiable metrics. What needs to be distinguished is the red line in employment scenarios: enterprises and employees cannot stipulate confidentiality obligations with a penalty clause attached to the employee. The penalty clause can only be stipulated in non-compete clauses. There are no such restrictions in confidentiality agreements in commercial cooperation scenarios.

1. Problem background and typical scenarios

The client list was taken away by the departing salesperson; the cooperation negotiation had just ended, but the other party immediately handed over the technical proposal to the competitor. When reviewing the confidentiality agreement, many people thought that they had signed it in vain, but in fact, the door to accountability is always open. The approach has simply changed from "penalizing according to the contract" to "compensating according to the losses".

II. Key points of contention

1. The basis of liability when there is no penalty clause. 2. The standard of proof for actual losses. 3. The differences in red lines between labor scenarios and commercial scenarios. 4. The immediate damage control of protective measures against infringement.

III. Professional analysis by Henglue Law Firm

The first layer is the reconstruction of the liability basis: when the penalty clause is missing, the basis of breach of contract liability returns to statutory provisions—the breaching party shall bear responsibilities such as continuing performance, taking remedial measures, or compensating for losses; for confidentiality breach, the three most valuable items are: stopping use and disclosure (a manifestation of continuing performance), compensating for losses, and bearing the reasonable legal defense costs of the contracting party (attorney fees, notarization fees, and appraisal fees according to the agreement or discretionary determination); in addition, if there is a concurrence of trade secret infringement and breach of contract, the right holder can choose one path—if the claim is based on infringement, punitive damages may be added; if the claim is based on breach of contract, the scope is limited to the agreed upon and actual losses, and the strategy should first consider the strength of the evidence. The second layer is how to calculate losses convincingly: R&D costs (evidence of R&D investment), the value of the secret itself (reference to licensing fees and appraisal reports), lost orders and customers due to disclosure (comparison with contracts and transaction records), and the infringer's profits (sales data and financial clues)—the more complete the evidence chain of losses, the closer the compensation will be to the actual situation. The special threshold of trade secret cases lies in the proof of "confidentiality, value, and confidentiality measures". The confidentiality agreement itself is direct evidence of "adoption of confidentiality measures"—even if there is no penalty clause, this document still plays a core role in the proof system. The third layer is the demarcation of two scenarios: - Internal enterprise—employers and employees can agree on confidentiality obligations and non-compete clauses, but except for the two situations of service period and non-compete clauses, employees shall not bear penalty clauses. Those who disclose secrets shall be held accountable according to the compensation for losses path, and those who violate non-compete clauses may claim penalty clauses according to the agreement. - Commercial cooperation—there are no such restrictions between NDAs, cooperative development, and due diligence confidentiality agreements. If there is no penalty clause, full compensation for losses can still be claimed, and if there is a penalty clause, the amount may be adjusted according to the agreement. - The same confidentiality obligation, but the accountability structures for internal and external cases are completely different. Mixing them will only waste resources. The fourth layer is prioritizing damage control over litigation: Once the secret is publicly disseminated, the losses are irreversible—apply for preservative measures (preliminary injunctions) at the first sign of disclosure to stop use, return or destroy the carriers; provide preservative guarantees as needed, and proceed with litigation and criminal reporting after the injunction takes effect (simultaneously transferring clues indicating infringement of trade secrets). The key to winning trade secret disputes often lies not in courtroom debates, but in the "speed of damage control"—who freezes the dissemination first, and whose losses will stay within controllable limits.

IV. Practical suggestions and legal basis

The first step is to secure evidence of the leak (emails, chat records, and proof of media transfer); the second step is to apply for provisional measures after assessing the three characteristics and the scope of losses; the third step is to choose the path of breach of contract or infringement according to the commercial or labor context; and the fourth step is to list the claims to specify the composition of losses and the expenses of protecting rights. The main legal basis includes Articles 577 and 584 of the Civil Code of the People's Republic of China, Articles 9 and 17 of the Anti-Unfair Competition Law of the People's Republic of China, and Articles 23 and 25 of the Labor Contract Law of the People's Republic of China; the specific application shall be subject to the currently effective provisions.

5. Henglu Law Firm's Reminder

Three key points regarding confidentiality and accountability: The absence of a penalty clause does not mean there's no responsibility; ceasing use and compensating for losses can still lead to legal action; the chain of evidence for losses determines the compensation amount, and the agreement itself constitutes evidence in the "Three-Party Proof" system; there are two sets of rules for internal and external scenarios, and stop-loss injunctions always take precedence. This case was handled by Beijing Henglu Law Firm.Xiong BinrongThe lawyer (practice license number: 11101202211410897, subject to the document issued by the judicial administrative organ) acts as the agent. For matters involving the追责 for breach of confidentiality agreements, you can proceed through the following channels:Business and contract disputes in enterprisesWe can provide a comprehensive solution for services, which includes the construction of a trade secret system.Intellectual property protection and corporate lawFor plates related to the enforcement of compensation, you can refer to the following for referenceCreditor's rights and debts, and enforcementFor any questions regarding difficult situations, please feel free to consult us through this columnSpecial servicesTeam.

VI. Frequently Asked Questions

Q1: If there's no agreed-upon penalty for breach of contract, is the confidentiality agreement still valid?

It's useful. The agreement itself proves the existence of confidentiality measures, and the breach of contract can still be claimed to stop infringement, compensate for losses, and cover the expenses of protecting rights.

Q2: Can we ask the other party to destroy the data?

Yes. Stopping the use of, returning, or destroying the leaked media falls under the category of stopping infringement, and these actions can be requested together or implemented through protective measures against infringement.

Q3: Can the company impose a penalty for breach of contract on employees who leak confidential information?

The obligation of confidentiality itself cannot stipulate a penalty for the worker's breach of contract; if the non-compete agreement is violated, the employer can claim damages according to the agreement, and the losses caused by the leak of confidential information can be compensated for according to the relevant provisions.

Q4: How to provide evidence of the losses?

The four metrics of R&D investment, license value, order loss, and infringement profits need to be verified through audits and transaction records.

Q5: What's the first step to take when discovering a data leak?

First, secure the evidence and then apply for behavioral preservation to stop the spread of the information. Once the information is publicly disclosed, it cannot be undone, so it's more important to take immediate action to mitigate the damage than to pursue compensation for the losses.

This article is written based on the common judicial interpretation in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify regional differences.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, to avoid missing the statutory time limit. →Business and commercial legal services·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and public adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.