The Research On The Crime Of Invasion Of Trade-Secrets

Commodity economy gives birth to the Trade-Secrets, which experiences the stage of static Trade-Secrets, dynamic Trade-Secrets and secret mutually supplementary for the patent system in turn during its development. It is not until 1993 that Trade-Secrets was defined in our law. In the law against unfair competition the definition of Trade-Secrets, which not only gave clear boundary to the extension of the Trade-Secrets but conveyed its natural characteristics, was formally confirmed. Trade-Secrets was characterized by privacy, value, practicability and secrecy. Business information adverse to operator should be considered to be a kind of negative Trade-Secrets to be protected.There are four different views on the theoretic basis of the criminal law protection of the Trade-Secrets, in which the theory of property right is more rational. However, the property right of the Trade-Secrets differs from the general property right mostly in the fact that the right of the Trade-Secrets can only be confirmed in the process of the lawsuit. The necessity of the criminal law protection of the Trade-Secrets was determined by the function of the criminal law, the characteristic of the Trade-Secrets itself and the requirement of the economic development. Meanwhile, the protection must keep moderate, namely, we should make the criminal law obey to the modest and restrain principle and the value orientation, and aiming at the reality, setting the protection of the Trade-Secrets in a certain range.The object invading the business is a complex one including the property of the obligee of Trade-Secrets and national managing system and market competition order also. There are four behaviors of the objective aspects in the crime of invading theTrade-Secrets: the behavior of obtaining the Trade-Secrets illegally; abusing the secret obtained illegally; abusing the secret obtained legally and other behaviors considered as the crime of invasion Trade-Secrets. What's more the behavior has to bring heavy loss to the obligee of the Trade-Secrets. The subject of the crime was general, including individual and community. The crimes are probably committed by the insiders or the past insiders. The subject elements of the crime can be intentional as well as negligent.The loss caused by invading Trade-Secrets could be both direct and indirect to the obligee. As the indirect loss was that of the anticipated interests, we count it in the heavy loss. As for the calculation basis, the loss of the obligee, the interests the actor obtained and permissible cost should be referred. The "should have known" mentioned in the crime belongs to negligent offense form. The actor's recognition of the consequence of his behavior is negligent as his recognition of the object of his behavior is negligent when the actor is in the condition of "should have known". This crime differs from the crimes of invading secret and counterfeiting patent in the object of the crime. But concurrence still exists. Generally speaking, undone situation doesn't exist as the crime is consequential offense. But considering the penalty to some special behavior, the undone situation should still be held in reserve conditionally.Subordinate legislation mode should still be adopted to help act to the new condition of the invasion Trade-Secrets at any moment. The present single accusation can neither cover nor effectively deal with the complicated criminal act of invading Trade-Secrets. Accusation should be set up to correspond to different situations. The criminal penalty against the behavior of invading Trade-Secrets negligently should be cancelled. The penalty arrangement should be improved, and at the same time, the present stipulation that giving fist place to punishment against freedom and second place to pecuniary penalty should be reversed, namely their placed should be changed and establishing other economic penalties such as penalty against competence.