On Determination And Legislative Perfection Of Crime Of Infringing Trade Secrets

As a kind of intangible assets in value, trade secrets is regarded as an important link that enterprises make enormous economic benefits and competitive advantage in the fierce market competition. With the growing concern of trade secrets and practising about the trade secrets , the trade secrets torts emerge in a large amount. It is necessary that using criminal means to protect trade secrets. Our country established the Crime of Infringing Trade Secrets firstly in the Criminal Law of P.R.C. in 1997, and stipulated comparatively severe punishment. Chinese Criminal Law for the protection of trade secrets start relatively late, and set up in a short period of time. Due to these reasons, the people's understanding of Crime of Infringing Trade Secret is still relatively ambiguous. There are lots of Defects and dispute in theory and practice because of the complexity and speciality. Therefore, the author writes the essay in order to study and analyze several problems disputed greatly on it to arouse more thoughts.There are four parts in the essay. In section one, the author gives the introduction about trade secrets and Crime of Infringing Trade Secrets, including the criminal object of Crime of Infringing Trade Secrets-- trade secrets and legislative process of Crime of Infringing Trade Secrets in China. The criminal object of Crime of Infringing Trade Secrets is trade secrets. 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 different understanding sas for this. As Act of Fighting Against Unhealthy Competition, it is defined as"unknown to the public, profitable and practical to the obligee, the technique and management information is protected by the obligee"in China. By this definition, we can learn five basic characters of trade secrets, they are secrecy,value, practice,protection and information. In 1997, the Criminal Law was amended in China and the clause about the Crime of Infringing Trade Secrets was added in it firstly. For the purpose of better regulation of market order by encouraging fair competition, we will perfect the Crime of Infringing Trade Secrets constantly.In section two, I talk 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 oblige, including property and usufruct. Second, the actions of invasion can be divided into four categories basing on the article 219 of Criminal Law of P.R.C.(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 (3) Against the rules of agreement for protecting secrets, the behavior to disclose, use and permit others to use trade secrets. (4) The behavior that Someone knows perfectly well or should know the three previous behaviors obtains, uses or discloses the secrets. Third, it is something about 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, we can draw lessons from the method of the American judge, that is the cost that the infringer made the same result by legal means deducts the cost made by illegal means. Lastly, on offence form of invasion, there are lots of divergences among theoretical circles, in the my opinion, by the rule in article 219 of Criminal Law, invasion should be on purpose including indirect intention and direct intention.In section three, I discuss the determination of the Crime of Infringing 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 trade secrets in employment relationship. Second part is the boundary between the crime of infringing trade secrets and other relative crimes. In this essay, the author selects the Crime of Infringing State Secrets , Larceny, the Crime of Illegal Dealing in Similar Business and Disclosing Inside Information Crime, then illustrate the boundary between the Crime of Infringing Trade Secrets and them.In section four, the author talks about the legislative defects of the crime of infringing trade secrets and makes the suggestions on how to improve it. 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 part is about the defects and perfection of accusation of the Crime of Infringing Trade Secrets. There is only one concrete accusation with different characters and different subjects in Criminal Law in China. It is not so scientific. We should regard the Crime of Infringing Trade Secrets as the Category Accusation, distributed by different subjects or characters of tort. Second, there is defect of the Regulations on action of the Crime of Infringing Trade Secrets. It is one of the torts that someone obtains the trade secrets by improper means. It means crime whether he discloses, uses, and permits others to use the trade secrets or not. This article should be cancelled. Third,"heavy losses"and"very serious results"play a vital part in measuring the penalty."Heavy losses"means the losses caused above 500,000 yuan and"Very serious results"means more than 2,500,000 yuan. However, we don't know the problems like the range of loss, the calculation of amount etc. Therefore, the bureau should pay attention to these problems and solve them. Lastly, the stipulation of penalty is unreasonable. Imprisonment penalty is used too much, so that caused"strict but not tight". Therefore, we should increase the grade of measurement of sentencing and put fine penalty in the first place.In addition, we should set up qualifications punishment, and make the criminal lose the condition to recommit.