On The Incriminating Standard Of The Crime Of Infringing Commercial Secrets

In the era of big data under the background of "Internet plus",enterprises have gradually realized the importance and urgency of protecting trade secrets.To strengthen the protection of business secrets is not only the internal need of promoting international information technology exchange and technological innovation,but also the inevitable choice of integrating into the global market economy.However,the fierce and severe market competition between companies and the frequent and free flow of management and technical personnel bring a great risk of leakage of corporate trade secrets.Therefore,perfecting the protection mechanism of trade secret and the prevention and cure system of trade secret crime has become the key problem to be improved urgently.Although the criminal Law Amendment(11)has revised the incrimination standard of the crime of infringing on trade secrets to a certain extent,there are still some problems in the incrimination standard of the crime,such as the unknown scope of the factors to consider the incrimination and the confusion of the calculation method of the amount.Therefore,it is a fundamental solution to get out of the dilemma of the current criminal protection of commercial secrets to further study the incriminating standard of this crime and clarify the boundary between the infringement of commercial secrets and the crime.The incrimination standard of the crime of infringing on commercial secrets includes two levels: the first level is what is the incrimination standard of the crime of infringing on commercial secrets,and is "serious" the incrimination standard or the completion standard? The second level is how to understand and apply "serious circumstances" in judicial practice.For the first level,it includes the theoretical positioning of "serious" and the sorting of the factors to consider "serious";The second level includes the choice of how to judge the relevant circumstances step by step in judicial practice and how to calculate the amount of crime as the main factor of "serious circumstances".This paper mainly discusses the above two levels of problems,in addition to the introduction mainly includes the following three parts.The first part discusses the connotation and present situation of the crime of infringing trade secrets.Trade secrets are not pre-registered and registered rights.Whether their rights exist and scope of authority must be judged by a judge or a relevant appraisal institution entrusted.The Anti-Unfair Competition Law expands the scope of trade secrets to all commercial information that meets the requirements of non-disclosure,value and confidentiality.This is not only a response to the Bilateral agreement of the First Stage of china-us Economic and Trade Agreement,but also reflects the trend and determination of China to strengthen the fight against illegal and criminal acts of trade secrets.This crime belongs to legal crime,violating relevant pre-legal laws and regulations is the unwritten elements of legal crime,"criminal Law" does not stipulate the scope and characteristics of trade secrets,but in accordance with the "Anti-Unfair competition Law" provisions of the scope and characteristics of trade secrets,constitute the infringement of trade secrets is the premise and basis for the establishment of this crime.Analyzing the current situation of legislation and judicature is the starting point to study this crime.It is not difficult to find through analyzing legislative changes,sorting out judicial interpretations and retrieving and summarizing relevant judicial precedents: In judicial practice,the amount often becomes the only basis for judges to determine that a certain behavior constitutes the crime of infringing on trade secrets.The methods for calculating the amount are different,including cost calculation,license royalty calculation,sales profit calculation,illegal gains calculation and market value calculation algorithm.It is concluded that there are two problems in the judicial determination standard of this crime: the tendency of the amount theory and the disorder of the calculation method of the amount of the crime.The second part analyzes the reasons for the standard of incriminating the crime of infringing trade secrets.As for the legal interest of this crime,there are always two opposing viewpoints of single legal interest theory and compound legal interest theory.The theory of single legal interest includes two viewpoints of individual legal interest and superindividual legal interest,and the theory of complex legal interest includes two viewpoints of not distinguishing primary and secondary legal interest and distinguishing primary and secondary legal interest.The nature of intellectual property rights of trade secrets and its natural connection with market competition determine that the crime of infringing trade secrets can only be a legal benefit.As far as this crime is concerned,its direct purpose is to safeguard institutional legal interests,while its ultimate purpose is to safeguard individual legal interests.Institutional legal interests serve individual legal interests,and individual law benefits higher status.Since no relevant judicial interpretation has been issued to provide reference for the understanding and application of "serious circumstances" in this crime,there have been constant disputes about the positioning and consideration factors of "serious circumstances" in this crime.In theory,there are three theories about the orientation of "serious circumstances" : objective punishment condition theory,crime constitutive elements theory and differential treatment theory.The complex theory of category constituent elements in the theory of differential treatment combines the theory of objective penalty conditions and the theory of crime constituent elements,which can cover all the circumstances that reflect the harm degree of the act of infringing on trade secrets.Theoretically,there are two viewpoints about the consideration factor of "serious circumstances" : material loss theory and overall consideration theory.The value of trade secrets determines that the consideration factor of "serious circumstances" can only be related to the loss of economic interests of the obligee,but the economic loss should not be reduced to material loss,and all circumstances related to the loss of economic interests of the obligee should be considered.In addition,as one of the important plots,the five calculation methods used in practice are unreasonable.The third part clarifies the incriminating standard of the crime of infringing commercial secrets.The judgment of "serious circumstances" should follow the complex theory of category elements and be divided into two steps: the first step is the circumstances within the scope of basic illegal field,the amount of crime,the operation of the victim company and other circumstances which can directly reflect the damage of the right holder should be the primary basis for judgment;The second step is the circumstances beyond the scope of basic illegal areas,the means of crime,the number of acts should be taken as the secondary basis for judgment.For the calculation of the amount of crime,the appropriate way should be selected according to the circumstances: for the act of infringing business information,the actual profit obtained by the perpetrator shall prevail;The infringement of negative information shall be calculated according to the r&d cost of the right holder.Since technical information is the most frequently infringed trade secret,and the behavior pattern of infringing technical information is relatively complex,the method of calculating the amount should be further distinguished according to the behavior pattern.For those who illegally obtain trade secrets and independently produce and sell relevant products,the amount of the crime shall be determined in one of the following ways according to the principle of "the higher one is not the lower one" : first,the profits of the perpetrator;Second,the licensing fee or market transfer price of trade secrets;Third,the appraised value of trade secrets.Where the business secret is illegally obtained and transferred to a third party,the price of the transfer agreement or the market price of the business secret shall be used for determination.The disclosure of trade secrets shall be determined on the basis of the assessed value of the trade secrets.Those who simply obtain trade secrets illegally without carrying out follow-up acts shall be determined by the ordinary licensing fee or appraised value of trade secrets.