The Research Of Trade Secret Protected By Criminal Law

Protecting intellectual property rights including trade secrets by criminal law is not only an international trend,but also have necessity and urgency in our country at present.The crime of infringing upon intellectual property rights,particularly the crime of violating trade secrets,is a criminal phenomenon which has been attached high attention in current business competition and judicial practice.As there is great divarication in theory,confusing and difficult in practice,it is necessary to argue and study this issue.I will analyze the characteristic and the insufficiency of trade secret protection of the criminal law in our country nowadays from two viewpoints,propose my opinion toward improvement.One viewpoint is to protect the trade secret,to maintain impartial order of business,another viewpoint is the function structural of the punishment to crime,the social protection,the human rights safeguard by criminal law,at the same time, combine the foreign legislation and the international agreement stipulation, take the constitution of a crime as the key point.We recognize the secrecy of trade secret should consider the originality,practical should not be an independent element,but the complementary explanation of the value.The serious social harmfulness is the first reason why we regard behavior infringing upon the trade secret as a crime,the reality requests to strengthen the trade secrets protection by the criminal law,but we must insist the accuracy,necessity and appropriateness. The object include fair business competition order and the people's right and interests to trade secret;The subjective aspect does not include fault; The heavy loss of oblige is different from the value of trade secret itself, should be actual loss and material loss.The phenomena of infringing upon the trade secret in talent flowing,should consider the balance of the labor rights protection of workers and the right to choose jobs,both sides' right should be paid fairly attention to,coordinates conflict of interest,penalty applying should be cautious,the scope should strictly limit,the condition should be normalized.The protection by criminal law should pay attention to not only the amount of damage,but also the behavior subjective malignancy and the social harmfulness.It is right that apply criminal law to protect right and ensure the implementation of other law,only other methods are invalid,should criminal law be applied to protect right and the implement of other laws.Economy spy crime should be established according to behavior characteristic,the extent of legal punishment should be enlarged,fine punishment should be exerted and regarded seriously,and should be improved.Qualification punishment should be set up.