Research On The Difficult Problems Of Criminal Judicial Protection Of Trade Secrets

At present,our country is developing from intellectual property power to intellectual property power,and the importance of trade secret as a special intellectual property right has become increasingly prominent.Establishing reasonable and effective trade secret protection system is not only the need of enterprises to maintain their own commercial value and market competitiveness,but also an important guarantee for the construction of the rule of law and economic construction of the country.Because of the huge economic benefits and competitive advantages brought by the trade secret,the number of criminal cases of trade secret shows a linear increase trend.Therefore,The Amendment(XI)to the Criminal Law of the People’s Republic of China(Here inafter referred to as the Amendment(XI)to the Criminal Law)has made necessary amendments to improve the crime of infringement of trade secrets,marking that the criminal protection of Chinese trade secrets has entered a new development stage.However,the criminal judicial identification of trade secrets is still controversial and needs to be further improved from the system level.Based on the basic legal theory of trade secret,this paper will take the crime of infringement of trade secret as the research object,combining with The Amendment(XI)to the Criminal Law,discuss the identification and difficult problems existing in the judicial practice in our country;By analyzing typical cases and comparing foreign judicial practices,corresponding measures and suggestions are put forward in order to provide reference for the improvement of our country’s criminal protection system of the trade secret.This article includes four parts: The first part through the case analysis method to study the sample cases found that in the past ten years,Chinese commercial secret criminal crimes frequent,most of the cases distributed in the developed areas,there are problems such as long trial,poor certainty of judicial judgment;In the judicial practice,there are three difficult problems in the judicial identification of the crime of violating commercial secrets,namely,the identification of commercial secrets,the identification of criminal acts and the identification of heavy losses.The second part analyzes the constituent elements and expression forms of trade secrets according to different scholars’ viewpoints and typical cases,and makes specific identification of the problems that exist in the identification dispute in practice,such as customer list and negative information.The third part divides the criminal acts of trade secrets into illegal acquisition,legal acquisition and indirect infringement,focusing on the identification of the newly revised contents such as electronic intrusion and the scope of confidentiality obligation.The fourth part,starting from the disadvantages of "heavy loss" and the rationality of "serious circumstances",constructs the judicial determination standard based on the aggravation of the previous legal situation,combining “heavy loss” with other serious circumstances.