Several Issues On Impinging Upon The Business Secrets Crime

The Business Secrets Crime (BSC) is defined as behaviors which violate related stipulations of the business secrets protection in the Criminal Law of China, infringe upon the obligee's business secrets by means stipulated in the Criminal Law of China, and cause heavy losses to the owner of such business secrets. Article 219 of The Criminal Law of China specifies the BSC, indicating that the BSC has been evolved into an independent type of economic crimes.The premise of the business secrets protection by the criminal law is that the criminal law has the nature of complement; the protection should follow the principle of interest balance and should advocate the modestly restraining spirit of the criminal law. These constitute the jurisprudential foundations of criminal protection against the business secrets.The business secrets is the object of the BSC, therefore it is necessary to define what is the business secrets. The delimitation of the business secrets is generally completed by ascertaining whether the business secrets has corresponding constituents, therefore, this thesis examines the concept of the business secrets in terms of its confidentiality, value, utility, and administrative characteristic, without giving a definition. Legal identification has become an important method and means for fact-finding in a case, which decides on the significant importance of identification results in defining the business secrets. But identification of the business secrets can only aim at its technicality elements and the identification factor is the confidentiality of the business secrets.According to the stipulation of Article 219 of the Criminal Law of China, the objective element constituting the BSC must be a harmful result"causing heavy losses to the business secrets obligee". In Chinese judicial practice the standard for recognizing as"heavy loss"is very high, so the infringer's business income is not equal to the obligee's loss, and the value of the business secrets is not equal to the loss incurred to the obligee."Heavy loss"generally refers to serious damage to the obligee's business activities, resulting in sales holdup and overstocking of commodities to obligees. This is exactly an important criterion distinguishing the BSC and the civil infringement. But regardless of which situation, the heavy loss should be defined as actual material loss, and be computed in accordance with criteria of loss incurred to the obligee, his profit, and the fees and loyalties of the business secrets."What should be known"in Clause 2 of Article 219 in the Criminal Law of China should be understood as"negligence"of"carelessness"rather than"negligence"of"intentionality"or"over-confidence". In view of legislation intention, the subjective element of the BSC should be negligence so as to conform to the modestly restraining principle of the criminal law and the principle of crime and punishment accordance for keeping uniformity and coordination among the criminal law articles. Therefore, the clause of"what should be known"in the criminal law should be abolished.