Study On Several Cognizance Problems On Crime Of Infringing Trade Secrets

As economic globalization grows, competition of trade profit contributes tostriving for commercial secrets. During current process of the establishment ofsocialist market economy in our country, economic competition among marketsubjects is particularly fierce. Meanwhile, all kinds of conducts, which tread on codeof ethics, go against rule of honesty, obtain other’s commercial secrets by any kindof means or violate other’s rights of trade secret, are becoming even more violent.The situation destroys the fair and honest market competition order, harms trustrelationship among market subjects, and fosters speculating ideas of unearnedachievement. Therefore, it’s necessary to strengthen legal protection for trade secrets.Compared with other laws, the legislation, judicial practice and theoretical study oftrade secrets’ protection are still in a starting condition and in terms of basic theories,conception, constitutive requirement and the protection for substantive law andprocedural law, there still exist much dispute.Crime of infringing trade secrets refers to using improper means to obtain,illegally disclose, use or allow others to use the trade secrets of the obligee, whichcauses heavy losses for the obligee. It is a special crime form in socialist marketeconomic order crimes. As a special crime of infringing upon intellectual propertyrights, its constitutive elements of a crime, bounds with relative crimes and crimeforms are different from simple behavior crimes. At present, the criminal law circlein our country doesn’t pay enough attention to the study of crime of infringing tradesecrets, and scholars can hardly agree on some affirmation problems on crime ofinfringing trade secrets.This thesis studies the following three aspects of crime of infringing tradesecrets:Firstly this thesis discusses the cognizance problems on crime results of crimeof infringing trade secrets. According to the judicial explanation, the “losses” in “heavy losses” is not confined to “direct economic losses”, but “losses” in general.Infringing others’ trade secret includes several conditions as follows: merelyobtaining others’ trade secret, not finishing further utilization; secondly, illegallydisclosing others’ trade secret; thirdly, illegally using others’ trade secret; finally,illegally allowing others to use the trade secret of the obligee. Among those, eachconduct has different situation and different condition causes different losses. Theloss cognizance in concrete cases should be analyzed concretely, and needs judicialstaff to give independent judgment. Actual crime’s exacerbation result refers to thesituation that infringing trade secret causes considerable heavy losses for the secretoblige, rather than economic, political and reputation of the society and our country,and the concept is the same as the meaning of “heavy losses”, just different inamount.And then this thesis discusses the difference and bounds on crime of infringingtrade secrets, and compares crime of infringing trade secrets with crime of propertyviolation and crime of infringing country’s secret like banditry. Trade secret, the fruitof human intellectual work, as a spirit wealth for human to know about the world aswell as reforming the world, is embodied as a property right, but at heart, it belongsto conscious situation other than substantial and can’t be recognized as a target of acrime in banditry. When we study the bounds between crime and stolen goods crime,we should grasp two principles: first, analyze whether it violates crime of infringingtrade secrets and the crime of shielding or concealing the illegal gain or the incomeof illegal gain at the same time according to concrete situation; second, it constitutesenactments overlapping if it violates two crimes at the same time. Following theprinciple that special law is prior to general law, it should be treated as crime ofinfringing trade secrets. From relative legal regulation, some information can benational secret and trade secret simultaneously, and when it does, it is supposed tohave characteristics of both and to be confined to both, which deserves extraattention when studying the bounds between crime and crime of infringing countrysecret.Finally for the crime forms about crime of infringing trade secrets, this thesisdiscusses from ceasing form, accomplice form and crime amount. Although existence of calculated crime in crime can not be excluded, but under most situations,crime is a direct crime possessing a process from happening, developing tocomplement like other direct crimes. Therefore crime should have unfinished formssuch as potential crime in preparation, attempted crime and ceasing crime fromtheory of calculated crime only. As for the crime result of crime which is in directration to time in infringing, it’s not enough only to divide principal crime andsubordinate crime. Therefore it is necessary to introduce inherited common principaloffender theory. When we study stealing trade secret as well as trade secret’s carrierand the shape problem of the crime and crime of infringing country’s secrets, theanthor considers that under the situation of violating both of the two crimes, despiteobjectively one act of theft is conducted, for the object who violates crime ofinfringing trade secrets and object who violates banditry and infringes nationalsecrets, they have already constituted the imaginative joinder of offenses rather thanenactments overlapping, a felony should be chose to punish.The author hopes that this thesis can help grasp crime of infringing trade secretsand can be beneficial for the legislation and judicial practice of crime.