Study On The Improvement Of Trade Secret's Criminal Law Protection

The trade secret is the important constituent of our country's intellectual property. After China enters the World Trade Organization, we will protect the trade secret as much as possible. In order to protect other intellectual property, China has already made lots of laws and made some change after enter the WTO. However, China does not have the special trade secret protection law and there are only a few articles in some department laws that have made to protect trade secret. There are a lot of problems on protecting trade secret. The most important problem is that most people have no trade secret protection method. Many people including some people who execute the law consider infringing trade secret as infringement or administration irregularity. There is bad realization of trade secret criminal law protective necessity and bad execution, so it has a strong impact on trade secret criminal law protective force and effect. It is quite necessary to protect trade secret with criminal law. First, the importance of trade secret decides the importance of criminal protection of trade secret. The development of a country depends mainly on industry efficiency, and industry efficiency depends mainly on intellectual property. Nowadays, intellectual property is the spirit of a company. The intellectual property of some international companies is more important than the general goods. Second, trade secret infringement or criminal activity brings extensive damage to the trade secret possessors. Impersonally, it requires the criminal protection. In order to exploit trade secret, some major companies spend millions of money, so once by illegal disclosure; there is quite large loss to them.The paper starts from the definition of trade secrets, then finds the difference among Chinese trade secret's definition,trade secret definition in Trips and American trade secret's definition. If we want to improve the criminal protection, we must make clear the trade secret's definition. The improvement of trade secret definition is the precondition of the improvement of trade secret's criminal protection. The development of our country's intellectual property is later than other countries, so we can use for reference-developed countries' experience. This paper compares trade secret guilt with the imputation in"The Economic Espionage Act of 1996"on legislation value orientation, guilty object, subjective aspect, discretion of punishment as well as executive instrument, find out the problems on our country's penal protection of trade secret. After finding the problems, we will improve trade secret's criminal protection, including two parts: substantive law protection and procedural law protection.On subjective law protection, we firstly must improve the definition of trade secret, enlarge trade secret defined intension and extension,cancel practical provision in trade secret's definition, improve trade secret's value gender issue and make clear security measure's minimum standard. In this way, it is in favor of making clear the range of trade secret, and it will benefit to protect trade secret owner's lawful rights. Secondly, the problem at guilt not and guilt's gender is too blur, it is not good for guilty nicety cognizance and justice operation, so legislature and judicial authority obligatory should be quick to definitude or turn in interpret to solve this problem. Thirdly, The imputation in"criminal law"is too single, it is not good for punishing criminal offender, therefore,"criminal law"should increase two imputations, namely demerit let out trade secret guilt as well as provide offshore filch, poke, bought off, illegality with trade secret guilt. In this way, it can accord with the general rules of"criminal law". Lastly, trade secret's punishment is too light, we should aggravate trade secret's punishment in order to overawe the criminals and prevent crimes.On procedural law protection, owing to trade secret's particularity, in defense of trade secret quadric leak, first of all, the cognizance of business secret cases should be in secondary upwards people's court. Civil cognizance of infringing trade secret cases is too hard, so is the criminal cognizance of infringing trade secret cases. Secondly, in the cognizance of infringing trade secret criminal cases, it is not good for all proof exchange and proof decision. It will make the trade secret infringed at second time. Thirdly, we should not pay more attention to expert conclusion, whether trade secret be or not to be ought not be decided by expert conclusion remark but by clear reckon, whatever available legal proof could be trade secret's proof. The decision of trade secret is decided on whether possess probative force, whether have proof mutual corroboration, whether be equal to disproof refine to. Lastly, except open cognizance to the crime of infringing trade secret, all the people who participate in the cognizance must keep secret.Trade secret's criminal law protection is quite necessary before trade secret protection law is established, that not only protect trade secret owners'economic interests, but also our society or our country's interests.