On Several Problems Of Infringing Trade Secrets

We are in the era of knowledge economy. The rapid development of high-tech,changing innovation system, makes the competition of knowledge and technologymore intense. In the destruction of the socialist market economic order China’s"Criminal Law" established a single Intellectual Property Crime, this article onlyanalyze the infringement of commercial secrets. The goal of this study is that a clearunderstanding of the crime in the form of subjective and objective behavior, and striveto provide a more applicable for the crime of clear thinking.Research is divided into five parts: The first part of the object of the crime that is atrade secret for analysis. The concept of trade secrets is the content of the CriminalLaw Act stipulated, while somewhat controversial feature of trade secrets. The mainpoint of this part of the analysis of the research scholars that the value of trade secretsincluded practicality; the basic feature is not necessary contain teach, legality and risk;"not known to the public" is a relative secret and novelty of unity; the third feature isthat the management, rather than hard intellectual. Therefore, the characteristics of thetrade secrets defined as: the value (can bring benefits to the right person); relativesecrecy and novelty (not known to the public); management (the right to take securitymeasures).The second part of the study of subjective aspects of infringement of commercialsecrets. First, the subjective aspect of this crime can not be at fault, both have willfulnegligence of view itself has no legal basis, and this crime and the crime of divulging State secrets legislative changes should be consistent with this section and othercrimes infringing intellectual property rights have consistency. Additionallynegligence would result in a violation of the criminal law and the protection of theprinciples of Modesty. Secondly, the "should have known" inherited "Anti-UnfairCompetition Law" and "should have known" and the criminal judicial interpretation"should have known" is based on facts and evidence presumed to be "knowingly", or"should have known" belong "should know "instead of" should have foreseen "toarrive at the crime exists only in the form of deliberate conclusion.The third part is the analysis of the objective of violating commercial secretsbehavior. Separately analyzed the statutory four acts, the first act of studied theft,inducements and other improper means; second behavior to solve their independenceand disclosure, use, allow others to use the issue; the third major analysis of thebehavior of the perpetrator confidentiality obligations and the scope of the type,confidentiality obligations after leaving workers and the nature of this act. The fourthacts to address these issues: the scope of the third person, indirect infringement andviolations of bona fide third parties.The fourth part is the study of violating commercial secrets objective harm results.On the definition of "significant loss" that must include indirect losses,"significantloss" is not included goodwill and other material losses, losses can not be equal to thevalue of trade secrets. On "significant loss" basis, being able to identify the loss of thecrimes, mainly to see the increase in existing benefits and reduce unnecessaryexpenditures; when the loss is difficult to identify, the loss of profits can be identifiedas the perpetrator of the infringement of commercial secrets obtained; When it isdifficult to identify the profits, can be based on the use of a trade secret license fee iscalculated as the standard.The fifth part of the legislative proposals currently derived law and applicablerecommendations of the judicial crime. This section describes domestic criminalprotection for trade secrets laws and regulations compared to the current legalrequirements and to ask questions and appropriate modification of legislativeproposals, finalized what applies to judicial practice problems and solutions. Seeks to solve the most critical issues that the judicial application of this crime.