The Research On The Several Questions Of The Crime Of Infringing Commercial Secrets

Criminal law has been adopted by many countries as the last protection method in coping with infringing commercial secrets cases, and China established the crime of infringing commercial secrets in 1997.From then on, the controversies about some questions of this crime persist. Although, people have reached some agreements on some areas of this crime, others still confuse judges and experts. This article chooses three aspects to discuss this crime, such as subjective sin, objective aspects and heavy losses. Based on research on some questions, This article gives some new opinions, and hopes the practical and theoretical area can benefit from that.This article is divided into five sections: introduction, the subjective sin of crime of infringing commercial secrets, objective behavior of crime of infringing commercial secrets, heavy losses of crime of infringing commercial secrets and conclusion.The introduction describes the meaning, the basis choosing the topic of the article, literature review and main research methods.The first chapter is about the subjective aspects of crime of infringing commercial secrets. Some people considerate the intention as the subjective aspects, while others think the negligence should also be contained in spite of intention. Otherwise, there are also controversies on whether indirect intention should be contained in the subjective sin. The article thinks the crime doesn’t include negligence, otherwise that would trigger conflicts logically and legally. Firstly, ‘should know’ can’t be regarded as ‘should be foreseen’ in negligent crime, and the word ’unveil’ shall include indirect crime. Secondly, and ‘should know’ shall be just deduction in criminal procedure. Finally, if we think this sin of crime contains negligence, that will obey the principle limiting criminal law and the principle balance between crime and punishment, and also trigger conflicts with criminal law system.The second chapter mainly discusses objective behavior of this crime, and the article will divide the crime’s behaviors into three categories: acquiring commercial secrets by improper means, unveiling, using and allowing others to use right holders’ commercial secrets. In this chapter, this chapter will clarify some questions about the behaviors, for example whether commercial secrets should become the objection of thief? Whether inducing includes cheating? How do we identify improper means? At last, acquiring commercial secrets by improper means could constitute independent crime of infringing commercial secrets. Otherwise, the design of the crime’s punishment can’t reflect the different social harmfulness of different behaviorsThe third chapter mainly discusses heavy losses of crime of infringing commercial secrets, including the range of heavy losses and the method of calculation of losses. The article firstly defines the range of losses, thinking the loss refers to material losses which contain direct and indirect losses, and not spiritual losses. In the second section, this article discusses the advantages and disadvantages of different basic calculation of losses, and thinks none of them can’t be applied in all the situations of crime of infringing commercial secrets. At last, the article comes up with methods to calculate heavy losses based on different behaviors.In the epilogue, the article makes an assessment of this crime and think it is important to continue research on this crime.