On Crime Of Infringing Trade Secrets

Trade secrets is the product of rapid development in marketing economy, possession of certain secrets will take some advantages in competition and make more profits. With the deepening of practice, people are more and more realizing the importance of trade secrets as a form of invisible wealth. To protect it, people have developed the form of protection from Civil Law to Criminal Law. In our country, we do the same job quite late and until 1997, we didn't have this kind of law. Due to this reason, people only have ambiguous understanding of the crime of infringing trade secrets, therefore, the author writes the essay in order to study and analyze some of the basic theoretical problems on it. In chapter one, the author gives the definition. To understand the definition, one must know the object of the offence, that is, the characteristics and definition of trade secrets. At present, different countries share no common understanding as for this. In China, it is defined as "unknown to the public, profitable and practical to the obligee, the technique and management information is protected by the obligee". By this definition, we can learn the five basic characters of trade secrets, they are information,secrecy,value,practice and protection. According to this, in our Criminal Law, the crime of infringing trade secrets is put as this: Against the rules of Commercial Competition, by malpractices, the acts to obtain, disclose, make use of and permit others to use the trade secrets of the obligee and also bring the obligee heavy losses are the crime of infringing trade secrets. In chapter two, the author talks about several problems on constitution of the crime of infringing trade secrets. First, there are Complex Object Theory and Simple Object Theory in terms of object issue, however, there are differences in the concrete opinion of an expert who even holds the same theory. The author of the essay holds the Simple Object Theory which believes the offending object is the proper rights for the obligee. Second, the actions of invasion can be divided into two categories, that is, direct invasion and indirect invasion. Direct invasion includes: (1) By means of theft, temptation, coercing and other malpractice behaviors of obtaining the secrets. (2) The behavior to disclose, use, and permit others to use the trade secrets which obtained by ways of malpractice. (3) Against the rules of agreement for protecting secrets, the behavior to disclose, use and permit others to use trade secrets. Indirect invasion refers to one who knows perfectly well or should know the three previous behaviors obtains, uses or discloses the secrets. Third, on the understanding of "heavy losses"and "grave consequence". In Criminal Law, there are some explanations in relative judicial explain, but there is no definite regulations on how to calculate the exact amount of losses. In the author's opinion, there should be the following ways to calculate the losses: (1) Criterion by the loss caused by Invasion. (2) Criterion by the profit obtained from the Invasion. (3) Criterion by reasonable fees of disbursement. Lastly, on offence form of invasion, there are lots of divergences among theoretical circles, in the author's opinion, by the rule in Criminal Law, direct invasion should be on purpose while indirect invasion should contain "intention"and "neligence". In chapter three, the author discussed the recognition of the crime ofinfringing trade secrets in judicial practice. First, we should distinguish the boundary between the guilt and innocence, on this, the author explains how to tell the differences between the crime of infringing trade secrets and other general illegal actions, the suitable practices to gain business information and malpractices to invade the trade secrets, the lawful practice and intrusion of business secrets in employment relationship. Second, the clear boundary between the crime of infringing trade secrets and other relative crime. In this essay, the author selects larceny, the crime of illegally aquiring state secrets and the crime of counterfeiting patents then examples to illustrate the boundary between the crime of infringing trade secrets and them. In the fourth chapter, the author talks about the legislative defects of the crime of infringing trade secrets and makes her suggestions on how to improve it which is the most valuable part in the essay. The 219 clause of Criminal Law in China is rather inattentive and there are many flaws in it, therefore, it needs to improve in legislation. First, by our law, all behaviors which can disclose, use or permit others to use the commercial secrets against the agreement and make the defender great losses are belonged to the crime of infringing trade secrets. It will enlarge the scope of punishment. On the other hand, in daily life, there are so many people who can get in touch with trade secrets because of their professions, for example, lawyers, accountants, tax collectors, they are apt to learn about the secrets due to their peculiar jobs and it should be not only their professional moral but also a kind of legal obligation to keep secret, however, there is no clear regulation in our law and it is a great leak, therefore, we should change the regulation. Second, "heavy losses"and "very serious results"play a vital part in measuring the penalty, however, they are not...