Study On The Crimes Of Infringement Of Trade Secret

In 1997, the Criminal Law was amended in China and the clause about infringement of trade secret was added in it for the purpose of more powerful punishment of acts of infringement of trade secret, better regulation of market order by encouraging fair competition, and protection of the obligee's trade secret as well. However, a large number of problems and arguments have appeared during the application of this clause, arousing great concern in both the academic and the judicial circles. This paper, basing on the existing Criminal Law of China, tends to give a comparison of the relevant clauses and regulations among China and other countries. What's more, it discusses some problems of the infringement of trade secret in China by applying the basic principles of the Criminal Law and probes some elementary suggestions for the improvement of the legislation. Besides the introduction and the conclusion part, this thesis consists of four parts, including about 38,000 words. Part I is about the object of the crime of the infringement of trade secret. In this part, an analysis and definition of trade secret are given according to the relevant regulations both at home and abroad. In addition, the nature, properties and characteristics as well as other aspects of trade secret are illustrated precisely. Part II, being one of the main parts, is about the constitution of the Crime of infringing on trade secret. This part applies the commonly used constitutional system of coupling models crime and gives a detailed analysis of the object, the objective aspects, the subject and the subjective aspects of the infringement of trade secret. From the aspect of object, the author sets out from the chapter of the infringement of trade secret, holding the view that the object of it should be the complex object, that is, the regulation system of trade secret executed by the country to maintain the market order of fair competition and the obligee's rights and interests. As far as the objective aspects are concerned, according to the regulations of Article 219 of the Criminal Law, a detailed analysis is provided both for the acts of obtaining the obligee's trade secret through unjust means such as theft, seduction or coerce and it is proposed that the act of obtaining trade secret by purely memorizing it should be stipulated as a special form of "stealing"so as for the better protection of the obligee. Meanwhile, it is noted that the condition for committing the crime of infringement of trade secret must be that great losses are caused to the obligee who possesses it. From the aspect of the subject, the author agrees that the subject of the infringement of trade secret is a common one, either a natural person or a corporation. Moreover, classification and explanation are made for the natural person who may possibly commit the crime; a categorization is also given for the likelihood of acts of infringing on trade secret by a corporation. As regards to the subjective aspects, the writer analyzes the points of intention, negligence and arguments between them among the academic field. In accordance with the theory, the construction of the Criminal Law, the characteristics of the protection of trade secret by it and the economical principle of this law, the author comes to the conclusion that the subject who infringes on the trade secret can only be intentional rather than negligent so that negligence is not a cause of the crime. Part III mainly deals with the recognition and punishment of the infringement of trade secret. There are four issues being discussed in this part: the recognition of guilt and non-guilt, recognition of this kind of crime or that kind one as well as punishment of concurrence of offences of infringement of trade secret. For the first issue, emphasis is put on the correct distinction of different boundaries for legal adjustment and a distinction is given for the acts of infringement of trade secret and acts of obtaining it though legal means. For the second issue, comparison and analysis are made, from the aspect of object, subject, object of the crime, objective act and so on, for the crimes of infringing on trade secret, infringing on property, revealing national secret, and other crimes such as providing secret, intelligence information and so forth of the country to other countries through theft, spying, bribery or other illegal means. Furthermore, a simple analysis is provided for the punishment ofconcurrence of offences and an elementary statement is made for the punishment of the crimes of infringing on trade secret as well. Part IV is about the improvement of the legislation of infringement of trade secret. From the aspects of the names and the forms of crimes together with the recognition of serious damages and grievous consequences, the paper points out the shortcomings of the legislation of infringing on trade secret in the existing Criminal Law of China and puts forward some suggestions for the improvement of it. As far as the structure of crimes is concerned, it is suggested that the crimes of infringing on trade secret should be regarded as a category of crimes and the detailed naming of them as well as the corresponding punishment be stipulated according to the degrees of damage to the society from infringement by different subjects. For the affirmation of serious damages and grievous consequences, there is a proposal that the relevant authority, by referring to the related stipulations both at home and abroad, set up an amount of compensation for reference according to the characteristics of trade secret through a scientific evaluation system and compensation principle. In the case of impossible ways of setting up the amount, judges are permitted to make their own decisions in the light of specific cases.