A Comparative Study Of Infringement Of Commercial Secrets Between China And Japan

With the rapid development of the Internet and the economic globalization aswell as the economic and technological competition among countries has becomeincreasingly fierce, business secret as a competitive advantage of enterprise areplaying an increasingly important role in the aspects of reducing the cost ofproduction and adding value of the product. While on the other hand, it companiedunder the drive of interests, some of the operators who did not hold the commercialmoral bottom line and abandoned the equality, fairness principle of honesty and creditbusiness, which leads to the high frequency of infringement to trade secret.So allcountries are in gradually improving its own legislation in order to protect the rightsand interests of the owner of the commercial secret and the fair market competitionorder. As the last line of defense of commercial secret, criminal protection is the focusof the governments and criminal legislation improvement is gonging on. China hasmade a lot of efforts in criminal legislation of commercial secret to protect thebusiness secret, which plays a role in punishing crimes of infringing business secretand inhibition of business secrets crime. While the market economy starts relativelylate in China, compared with the countries who has developed market economy andthe provisions of the crime in international convention，China still has a lot ofshortcomings in criminal legislation of business secret.But Japan, as a country of thecontinental law system has the reasonable regulations on these aspects. So, my papermainly compares the crime of breaching business secrets in China and Japan so thatto point out the insufficiencies of China about this crime legislation and then set outthe feasible methods to make it up.On the research methods, my paper mainly adopts the method of literaturereview and comparison for the analysis, and on the basis put forward some strategiesto consummating the crime in China.In content, my paper tries to do a comparative study through comparing thedifferent stipulations about elements of business secret、the constitutive requirementsof the crime、and its criminal liability、criminal procedure between China and Japan. By comparison, we will find the defects of legislation in China about the crime. Itmainly includes: practicability, as one of the crime elements, does not have areasonable regulation; the charges of setting, on account of the behavior; the set ofpenalty, which does not conform to the principle of compatibility of crime; in thecriminal procedure, the provisions to prevent further leak commercial secrets are stillnot complete. In the end, through referencing the advanced regulations of Japan andother countries to put forward some countermeasures. And these measures mainlyinclude: remove “practicability” as one of the elements of the crime; delete thenegligence tort in “Knows or should know”; and also should make provisions forsubjective qualification; try to make a orientation about the crime behavior whichmeans to setting different crimes with different penalty; change the only qualitativenot quantitative model to “both qualitative and quantitative”; legal person andnatural person should be imposed with different fines; instead the abstract finesystem to “multiple fine system”; add “Qualification penalty” in punishments;increase constructions such as “Secret decision” in the criminal procedure and soon.