Study On The Offence Of Infringing Trade Secret

The concept and characteristics of trade secret, legal attribute of it and legislating evolution of the offence of infringing trade secret, the above three are preconditions to further the studies of the crime. Trade secret is defined as technical information or business information that is not widely known to people in the same industry, that obligees take measures to keep secret, and that bring obligees profit. Trade secret falls into the category of intellectual property. The conclusion can be the guidance to legislation of the offence of infringing trade secret, and it can also be one of the standards to judge whether the current provision in criminal law is reasonable. At the same time, the reasonable and unreasonable places can be traced back in the research of its legislating evolution.The direct object of the offence of infringing trade secret is the right of trade secret, which substantially is a sort of immaterial property ownership. Immaterial property ownership differs from material property ownership in usufruct and disposition. The objective aspects are illegal acquisition of trade secret, illegal use of illegal acquired trade secret and use trade secret by breaking the contract, or the third person violates the law to illegally acquire trade secret. The above actions commit the crime only when they lead to great loss. In the action of illegal acquisition, theft and deceit with benefit should be understood in their narrow senses. In the provision in criminal law, "permit others to use it" is absolutely unnecessary, and the attributive clause "breaking the contract or breach of obligee's requirement to keep it secret" gilds the lily. And as this crime is consequence crime, of course, illegal acquisition can not commit a consummated crime. While if it's an attempted crime, it can be dealt as attempted crime of revealing or usage. Therefore, according to the legislated pattern of consequence crime, there's not too much meaning to stipulate the action of illegal acquisition. It requires great loss to constitute the crime, and the loss refers to economical loss, including getting into unfavorable situation in competition,overstocked products, and descending turnover. The subject of this crime is common subject. The subjective aspect is usually on purpose, but the criminal law stipulating the action of the third person infringing trade secret actually confirms the existence of negligence, which comes into conflict with the ultimate aim to protect intellectual property. What's more, purpose to use it abroad should be embodied.The boundary of being guilty or not for the offence of infringing trade secret concerns many factors: Is it a trade secret? Do the products come from the same technique? What's the ownership of the trade secret and does it cause great losses? To tell the information is a trade secret or not is based on the characteristics of trade secret. To tell whether the products come from the same technique we may find out the ingredients. And the significantly loses may be the obligee's loss, may be the value of trade secret or both of them. One should choose the right standard according to the circumstances. The difference between the offence of infringing trade secret and the larceny depends on the subjective aspect. This crime is quite different from the offence of infringement country secret. Its reason lies in: Once the trade secret changes into the national secret, although simultaneously characteristic has the business secret, it cannot be regard as the trade secret.