Research On The Intersection Of Civil And Criminal Law In Cases Of Infringement Of Trade Secrets

The trade secret infringement has been reached a certain level of social hazard,not only civil liability should be borne,but also criminal liability if a crime is constituted.Different from the object of traditional intellectual property rights,the components of trade secret require secrecy,confidentiality,value,which causes unclear rights boundary of trade secrets and difficult definition of protection object,especially the identification of secret points.Therefore,the same violation of trade secret can easily lead to the intersection of civil and criminal.On the one hand,from the entity perspective,due to the weak publicity of trade secret,there are difficulties in identifying the content of rights,boundaries of rights,act of damage and severity of the situation,which leads to the unclear boundary between civil tort and criminal offense.It is urgent to further clarify the reasonable boundary between the two.On the other hand,from the procedural perspective,the subjects of trade secret rights such as the trade secret rights holder,the subject of the lawsuit,the public security organ,the people’s court and so on have different behavior choices based on the consideration of interests in the dispute resolution process,so there is a question of which is the priority between civil rights and criminal public interests.Therefore,the handling of the intersection of civil and criminal matters in trade secret cases has not only become a problem that needs to be clarified in theory,but also a difficult problem in judicial practice.Under the background of building a powerful intellectual property country,especially since the signing of the Sino-US economic and trade agreement,the civil and criminal legislation of China’s trade secrets shows a trend of “strict protection”and “strong protection”.While increasing the civil protection of trade secret and comprehensively enhancing the strength of criminal protection.In 2017 and 2019,the“Anti-Unfair Competition Law of the People’s Republic of China” was revised successively,and the protection of trade secret was the key content.It not only expands the illegal acts of infringing on trade secrets,and expands the extension of the concept of “trade secrets” and the scope of operators,systems such as punitive damages and inversion of the burden of proof are also added.Later,in 2021,the“Criminal Law Amendment(Eleven)” passed by the Standing Committee of the National People’s Congress was revised the crime of infringing trade secret,lowered the standard for criminal case filing,expanded the criminal circle,and increased penalties,which means that more acts of infringing on trade secret will be introduced to the punishment scope of the criminal law.Although latest trade secret legislation has improved its protection,the boundary between civil and criminal is still unclear.The types of civil torts are all included in the objective elements of the crime of infringing trade secrets,resulting in unclear boundaries between civil and criminal protection of trade secrets.The “instrumental use” of criminal means by the owners of trade secret puts criminal protection in an inappropriate position,forcing the public power under criminal protection to become a tool to suppress fair competition,thus continuously infiltrating and squeezing the space for private protection.The boundaries and limits of civil penalty protection have become issues that need to be reconsidered in theory and in practice.The differences in jurisdiction rules,evidentiary standards,and adjudication ideas in the Civil and Criminal Procedure Law can easily lead to inconsistent factual determinations and contradictory adjudication results in cross-border cases of commercial secrets between civil and criminal cases,which in turn damages judicial authority and judicial credibility.In addition,the handling of civil and criminal cases of infringement of trade secrets often involves the priority of civil and criminal procedures,which requires the balance of interests.In practice,there are not only criminals before the civil based on the concept of “public law first”,but also criminals before the civil based on the principle of “private rights first”,and concurrent civil and criminal punishments based on the concept of “equal emphasis on public and private”,which leads to the confusion of the trial mode and affects the protection of the legitimate rights and interests of the parties and national public interests.Therefore,on the one hand,it is necessary to scientifically determine the criminal-civil boundary for the protection of trade secret to prevent the “instrumental use” of criminal means by right holders;on the other hand,the civil-criminal procedures for trade secret should be reasonably connected to ensure the effective protection of public and private rights and interests.The main reasons for the substantive problems of the intersection of civil and criminal cases in trade secret cases are as follows.First,the interweaving and integration of trade secret civil tort and criminal offense in judgment of illegality,which is mainly manifested in that the objective aspect of trade secret criminal offense covers almost all trade secret civil crimes.The type of tortious behavior reflects the consistency of the infringing object,the subject of regulation,the type of behavior,and crime obstructed.Second,the role and nature of the pre-regulation are not yet clear.The crime of infringing trade secret is a typical statutory crime,and the criminal offense is premised on civil tort.However,the criminal filing and trial of trade secrets focus on consequences of loss and circumstance in practice,whereas the prerequisite of identifying the constitutive elements of trade secret is ignored.The procedural problems of the intersection of trade secrets with civil and criminal are concentrated in the dispute over the order,which is mainly due to the conflict of the priority of public rights and private rights,criminal priority over civil professional disputes in the disclosure of case facts,as well as the factual expansion of criminal trial rights and the interest drive of all parties involved in litigation.The system design of the entity handling and procedural application of the intersection of civil and criminal cases of infringement of trade secrets should be positioned in the context of the current full implementation of the Civil Code,the“punishment function” achieved by the application of punitive damages rules for intellectual property rights,fully considering the market economy soil in which trade secrets are rooted,it is still necessary to abide by the principle of modesty in public law and return to the private nature of trade secrets,which will effectively safeguard the legitimate rights and interests of the owners of trade secrets and reshape the market order for fair competition.Therefore,the civil and criminal division of trade secret protection needs to be based on the dual illegality judgment,based on the criminal setting of the crime of infringing trade secret in the intellectual property crime system,supplemented by the characteristics of extraterritorial crimes of infringing trade secret,distinguishing different acts,different subjects and different harmful degree to build a systematic threshold for criminalization;based on the difference in the basis of claim rights between infringement and breach of contract,criminalize the breach of contract;based on trade secret,the crime is changed from“consequence crime” to “circumstance crime”,and efforts are made to eliminate it.Efforts shall be made to break the shackles of the “only amount theory”,and comprehensively consider the elements of the crime of infringing trade secrets in terms of market,subject,subjective purpose,behavior,and damage results.The handling of civil and criminal cross cases of trade secrets should not be limited to procedural disputes.“Criminal first” or “Civil first” or “equal importance”of civil and criminal procedures are aimed at safeguarding the legitimate interests of rights holders and fair market competition order.The substantive division of civil and criminal protection of commercial secrets should follow the concepts of modesty of public power and return of private rights.The setting and connection of civil and criminal procedures should focus on litigation efficiency and judicial authority,set up multiple paths,and give right holders the right to choose freely.First of all,the model of “Civil prior to Criminal ” should be excluded,the criminal proceedings after initiation should wait for the judgment of the civil case to be resumed,but it should be allowed to file a criminal report after the civil judgment takes effect if it is deemed that there is a criminal offense.The “criminal prior to civil” model has its inherent advantages which can transform criminal incidental civil litigation to fill the legislative defects and practical needs;thirdly,in the case where the civil litigation and criminal litigation for trade secret protection are carried out at the same time,the limited application of “paralleling of civil and criminal” model is allowed.It should be corrected that the people’s court arbitrarily transferred the case on the basis of“criminal suspicion”,or suspended the trial of the case indefinitely in the practice of civil trial,and based on the trial logic of trade secret cases,the first judgment system of “ composing elements of trade secrets” need to be introduced.Finally,the substantively applied “three-in-one” model of intellectual property trial which apply to commercial secret civil and criminal cases heard in the same court has the advantage of unified adjudication.Due to the difference in trial grade between litigation and criminal procedure,it is difficult to switch between civil and criminal procedures in the same court,meanwhile,criminal procedure needs to go through the stage of investigation and review.Therefore,the “three-in-one” model also needs to match the two models mentioned above and back to the parallel mode with litigation and restrictions.The intersection of civil and criminal issues in cases of infringement of commercial secrets involves not only the integration of substantive conflict and procedural configuration,but also the clarification of theoretical issues and practical difficulties.It is necessary to make a reasonable distinction between civil torts and criminal crimes on the entity,and it is also necessary to rationally connect civil procedures and criminal procedures in procedural terms.To solve the problems mentioned above,it is required to trace the nature of private rights of trade secret and the core of “fair competition” in the market economy,adhere to the principle of modesty in modern criminal law,prevent the public rights from private rights of excessive extrusion with the core goal is to safeguard the legitimate interests of rights holders and the order of market competition to build multiple paths cohesive mechanism of civil procedure.