On The Infringement Of Commercial Secrets

First, investigation is made by this paper on the state of infringement of business secrets in China. Analysis is made on the characteristics of crimes of infringement of business secrets. The general cases of legislations for infringement of business secrets both in China and abroad from ancient times up to now are studied, so as to make proper treatment to the crimes of infringement of business secrets generally. Next, composition of criminal offence is taken as the point of entry. Exploration is made to and suggestions are given for the negligence in legislation for infringement of business secrets. Emphasis is put on the three points as follows: (1) With regard to crime infringement of business secrets, the management regulations for business secrets and right of business secrets of the state shall not be deemed as the object. Only when the meaning of object of crime is understood correctly, can we define correctly that the object of crime of infringement of business secret is the business secret. This is the requirement for weakening the political function of laws and strengthening the function of justice of laws, and is the requirement by the viewpoint of criminal law for its justice, peacefulness, and compromise; (2) In the definition of business secrets by the Chinese criminal law, the so called "being practical" is unnecessary, since the specific reflection of the practical characteristics lies just on the economic profit to the obligee. At the same time, the characteristic of business secret shall mean that the obligee wants to keep the secret; (3) The regulation for penalty to indirect infringement of business secrets through negligence should be cancelled, and regulation for penalty to infringement of business secrets for breach of legal obligations should be added; (4) Different behaviors for infringement of business secrets shall be dealt with in different clauses, so as to determine different criterions for criminal compositions, forms of crimes,...