The Identification Of "Serious Circumstance" Of The Crime Of Infringement Trade Secrets

Criminal Law amendment(11),which amended the relevant provisions of the crime of infringement of commercial secrets,changing the conditions for the establishment of the crime of infringement of commercial secrets from causing losses to the right holder to serious circumstances,was promulgated and implemented in2021.Therefore,the crime of infringing trade secrets is changed from result crime to circumstance crime.But this change has caused the problem in determining the seriousness of circumstances.The seriousness of circumstances is the incriminating requirements of this crime stipulated in the Criminal Law,which has the function of distinguishing crime from non-crime.However,there have been no clear standards and rules for the identification of seriousness of circumstances,so far.It is a serious circumstance that the holder causes heavy losses.The quantitative elements,which is belonging to the major losses,should be classified as the elements of the serious circumstances.But the amount factor is not the only factor to consider the seriousness of circumstances.The judgment of the seriousness of circumstances should not only consider the amount of loss but also make other circumstances considered.The identification of the seriousness of circumstances mainly has two problems in theory and practice in the crime of violating trade secrets.These problems are mainly caused by the different voices between Chinese scholars and judicial workers on the identification.The violation of trade secrets is objective.In recent years,the case of infringement of trade secrets often occurs,which is concerned by the public.Therefore,the determination of the seriousness of the circumstances should not be shelved because of the difference in the opinion,but should be further analyzed and studied.The key to the debate about the identification of the seriousness of circumstances is legal interest and system status in theory.Actually,the dispute over the protection of interest is essentially the different understanding of the value of individual legal interest and order legal interest in the crime of infringing trade secrets.Some scholars insist that the interest of the holder is directly infringed,while the emphasis on the legal interest of order will make the protection of the holder’s rights and interests neglected.However,it will be contradictory with its position of disturbing the market order that ignoring the legal interests of order but only taking the protection of personal legal interests as the criterion.Therefore,we should affirm the value of legal interest of order and determine the compound nature of legal interests.In fact,the dispute of system status is a disagreement on the identification of quantitative factors.The objective factors are recognized in the traditional four-requirement system and the emerging theory.The constitutive requirements not only contain "quality" but also need to meet the requirements of "quantity",not completely separated.Based on the point,it is reasonable that the seriousness of circumstances belongs to the compound theory of class composition.The dispute mainly lies in the identification of heavy loss and the shelving of other circumstances in practice.The loss actually reflects the degree of danger posed by the perpetrator.There are their advantages and disadvantages in the right owner’s loss mode,the infringer’s profit mode and the trade secret value mode.So it is more appropriate to determine the loss by the means taken by the doer,so as to clarify the danger.At present,most scholars adopt a single identification standard for the identification of the seriousness of circumstances,making other circumstances weakened or even ignored.However,the evaluation of harmfulness is a comprehensive evaluation element.Therefore,it is appropriate to judge whether it belongs to the basic illegal quantity range by using the "two-step" method,which is more in line with the principle of crime and punishment adaptation in criminal law.