Determination Of Heavy Losses In The Crime Of Infringing On Commercial Secrets

The 1997 "Criminal Law" fixed the infringement of trade secrets and causing heavy losses in the form of the crime of infringement of trade secrets.Only when the infringement of trade secrets is carried out while causing heavy losses will constitute the crime of infringement of trade secrets.On December 26,2020,the twenty-fourth meeting of the 13 th National People’s Congress Committee passed the "Criminal Law Amendment of the People’s Republic of China(11)"(hereinafter referred to as the "Criminal Law Amendment(11)").This amendment The case took effect and went into effect on March 1,2021.Among them,the provisions of Article 219 on the crime of infringement of trade secrets have changed the resulting crime into a crime of circumstance.The standard of the crime of infringement of commercial secrets has been changed from “major losses” to “serious circumstances.” There is currently no judicial explanation for the seriousness of the circumstances.Whether it contains serious The loss law does not clearly stipulate.Previous judicial interpretations and departmental regulations only stipulated the amount of "significant losses",and did not specify the connotations of major losses(such as direct losses,indirect losses,material losses,loss of existing benefits,loss of expected benefits,etc.)and calculation methods Etc.to make provisions.The "Criminal Law Amendment(11)" has not explained the connotation,amount,and details of the "serious circumstances" so far.The theoretical and practical circles also believe that the "serious circumstances" are judged by the benevolent,and the wise see the wisdom."Major loss" has been regarded as the standard for the crime of infringing on trade secrets for more than ten years,and its determination method has been controversial in theory and practice.Now the term "major loss" is changed to "serious circumstances",which means "major loss".Under the background of unclear determination,the difficulty of applying the new regulations "serious circumstances" has been added.This article starts from basic theories such as trade secrets,trade secret infringement crimes,major losses’ legislative provisions,legal definitions,serious circumstance legislative provisions,and legal definitions,etc.,and gradually analyzes the current methods for determining “significant losses” of trade secret infringement crimes and existing The problems and reasons are analyzed from different subjects,namely,judicial organs,right holders,infringers,and the general public.On this basis,the application of "serious circumstances" or the dilemma that will be faced are analyzed from the criminal behavior,the specific identity of the criminal,the time of the crime,The location,the same seriousness of the existing circumstances,the consequences of the crime,and the perpetrator’s subjective severity are five major levels to determine the seriousness of the circumstances,in order to provide theoretical suggestions for the judicial application of serious circumstances.