Relevant Research On Crime Against Trade Secret

The trade secrets had existed during ancient times, the so called "secret recipe handed down from ancestor" shall be the very example. In modern society, the trade secret of Coca-Cola shall be a universal informed example. The knowledge inventory lead economy becomes the most important accelerator of the social development in the Information Age. The trade secret consist the core competence of its legitimate holder, decides whether the holder can win or not in the fierce business war, that’s why the sense and degree of trade secret protection becomes more and more strong, the measures adopted to maintain trade secret’s secrecy becomes more and more strict. But due to the defects of the trade secret protection system, there exist the "take free ride" phenomenon in the market, which becomes a kind of risk that trade secret’s legitimate holder can’t ignore, seriously damage the normal market competition order, block technical development, disturb social economic activities, both China and foreign countries were seriously injured by the trade secret crimes. In light of the great damage caused by the illegal use of trade secret, how to effectively protect trade secret becomes a common challenge that urgently needs to be settled by countries all over the world, a lot of scholars from different countries has made many in-depth researches and putted forwarded many theories, most countries has already drafted laws and use both civil、administrative and criminal institutions to protect trade secret, intents effectively reduce the vice effects to the minimum extent during the process of trade secret research and circulation through reasonable institutional design.The paper is consisted by the following parts: First, the forewords describe the great damage caused by trade secret crimes and the necessity of trade secret protection.The first chapter is legal institutions of trade secret. The author tries to make a definition of trade secret from the perspective of criminal law, analyze the legal features of trade secret; I wish that I can dig out the hidden realistic interests in the trade secret protection system through explore the legal basis of trade secret protection. After all this, I hope readers will have a clear recognition of the trade secret on the sense of criminal law that we will discuss in this paper.The second chapter, comparative study and comment on criminal legislations of trade secret. In this part, a brief introduction on the criminal legislations about trade secret of Continental system, Anglo-American system and China will be introduced. Of course, only a few selected foreign criminal legisIations about trade secret will be listed due to their different features and the influence of the country that made it. The selected foreign criminal legislations comes from Germany、France、Japan、Chinese Taiwan、UK、USA、Canada. A full-scale picture of trade secret protection will be show in a manner of comparative way. I hope a few positive examples and successful judicial practice will be found through the way mentioned about, we can absorb foreign countries’ successful experiences, at the same time I do hope all this will be helpful in making our trade secret protection system more perfect, we can solve concrete problems more properly the way we tackle trade secret crimes will be more justice and objective, the function of criminal sanction will be better realized.The third chapter is the analysis of the subjective and objective elements of the crime against trade secret. This part will cover the analysis of the subjective and objective elements of the crime against trade secret; different opinions will be introduced and analyzed respectively. The focus will be on the subjective fault analysis which different theories and points of views had been put forwarded that caused fierce discussion between scholars and the scope and the standard of calculation of huge lost which specified in the article219of current criminal law of China. The latter element do not have a clear、unified and operational standard which cause the phenomenon of different judgments were made by apply the same article.The method of case analysis will be used to clarify the pattern that courts follows in their judgments. All the cases used on the crime against trade secret comes from public channels, include the internet、academic websites and the Gazette of the Supreme People’s Court of P.R.C.On the basis of summarize and analyze the existed scholar’s views and alien countries’practices on the way of damage calculation, the author puts forward his own opinion on the trade secret huge lost calculation and its criminal sanctions.The fourth chapter is the examination and improvement of current criminal legal rules on trade secret protection. We have found a few of defects of the current trade secret protection system through examine the current legislation and judicial practice, they are improper crime system, different criminals with different subjective fault or objective behaviors were applied the same sanction rather than different sanctions the matches their crime, narrow scope of subjects that shoulder the responsibility of keep the secrecy of trade secret, ambiguous、 non-operational standard of calculation of huge lost in trade secret cases, inflexible litigation pattern,etc. In order to solve these problems, the author put forward corresponding suggestions to modify them. On the basis of research successful practices of comprehensive trial system of neighboring Japan、Chinese Taiwan and Thailand, and the judicial reform practices processing in some local courts like Shanghai and Xi’an, the author think it is high time for China to modify current trade secret trial system and introduce the comprehensive trial system to the whole country. The comprehensive trial system shows its advantages in saving the litigator’s time、money, realize judicial efficiency, unify the judicial standard to realize similar case similar judgment. We hope we can perfect the trade secret protection systems of our country after all this were done.The conclusion, this part talks about the conclusions the author reached on the basis of the whole paper.