Research On The Determination Of "Serious Circumstances" In The Crime Of Infringing Trade Secrets

The Criminal Law Amendment(11)revised the original criterion for the crime of infringing on trade secrets from "significant losses" to "serious circumstances".The legislative amendments have posed a challenge to theoretical research and judicial practice in determining the "serious circumstances" of this crime.The amount should no longer be the only basis for reflecting and evaluating the social harm of this crime,but the most common and important criterion for determining the "serious circumstances" is still "significant losses".Based on the clear requirement of legality of crime and punishment and the necessary direction,a more reasonable and detailed standard should be used to determine "serious circumstances".We should not only achieve the value of protecting society on the basis of ensuring legal stability,but also better limit subjective arbitrariness in the process of identifying crimes,achieve a balanced function of criminal law,and avoid excessive expansion of criminal law in social governance.This article first clarifies the basic theory of "serious circumstances" in the crime of infringing trade secrets,as well as the basic meaning,characteristics,and systematic positioning of "serious circumstances".Based on the previous identification standards and the legal interests protected by the crime,the plot is classified and analyzed using the identification model of "significant losses+other serious circumstances".To determine "significant losses",one can first combine the current situation of theory,legislation,and justice to clarify that the scope of "significant losses" includes direct and indirect losses.In practice,the calculation methods can be divided into four types: loss to the right holder,profit to the infringer,value of trade secrets,and licensing fees.In practice,there is a situation where the calculation standards are not unified.Clearly define the criteria for determining "significant losses",first based on legal interests,fully considering the different results caused by different infringement behaviors,categorizing behaviors into pure illegal acquisition type,illegal acquisition and use type,breach of contract and indirect infringement type,and complete disclosure type,and proposing specific identification criteria for each type.The modification of the criminal law provides a reasonable space for the perpetrator to profit,which can be distinguished from "significant losses",so it is classified as "other serious circumstances" for discussion.The "other serious circumstances" can be specifically divided into factors such as the actor’s profit,behavior(behavior means,behavior frequency,behavior time),subject,object,result,etc.,and then judged separately based on different factors.Overall,on the one hand,the scope of regulation for this crime should be appropriately expanded,reducing the difficulty of judicial proof through quantifiable "significant losses" and "other serious circumstances" that can reflect social harm;On the other hand,based on the protection of legal interests in this crime,a restrictive interpretation of the inclusion criteria for "serious circumstances" is made to exclude facts that cannot reflect the infringement of legal interests,prevent the improper expansion of the scope of criminal law regulation,and thus reasonably determine the "serious circumstances",achieving the connection between the judicial and social effects of criminal law protection.