Critical Survey And Re-proposed On The Identified Mode Of ’Significant Losses’ In Infringing Commercial Secrets Cases

In the era of knowledge economy, business information and technologyinformation can bring huge economic benefits to trade secret rights and has been animportant factor to maintain market competitive position. With the fierce marketcompetition, the number of criminal cases involving trade secrets is rapidly increasingand the amount involved in the case is quite huge, sometimes even reaching tens ofmillions yuan. Facing the urgent status quo, criminal protection on trade secrets isincreasingly subject to the attention of theorists and substantive departments, and theimprovement of the criminal protection on trade secrets has become an importantlegal issue.According to the provisions of Article219of China’s Criminal Law, the result of’causing significant losses to the right holder’ plays an important role in conviction ofinfringing commercial secrets cases. Trade secrets are intangible, volatile anduncertainties, and hence its recognized standards and specific calculation method aremore complex compared to tangible property. The lack of recognized standards of’significant loss’ in legislation, the differences on the connotation and denotation of ’significant loss’ between different substantive departments, and theoretical debate onthe question mentioned above have brought the judicial identification of ’significantloss’ into dilemma. First of all, identified standards are various between differentjudicial authorities, and even in the same case, the standard are still different. What’smore, the specific method of calculation in judicial practice is very confusing, andeven in the same case, the calculation methods are still diversified. Last but not theleast, the amount of the losses is blurred in judicial practice, which has seriouslydamaged the the legitimate interests of defendant and trade secret rights.Due to the huge confusion in recognized standards of ’significant losses’, a lot ofsolutions were put forward to solve this judicial problem. However, over-theoreticalsolutions cannot be effectively applied to judicial practice and oversimplified onescannot cover all reasonable conditions. All in all, to some degree, all proposedsolutions are unreasonable and impractical.Classification is of great significance in conviction and sentencing. Hence,infringements commercial secrets cases can also be typed based on the sort of tradesecret and behavior patterns. On the basis of the classification mentioned above,different identified mode can be applied appropriately. Specifically, trade secrets canbe classified as management secrets and technology secrets, and accordingly, differentmodes and calculation methods can be applied to different Infringing commercialsecrets cases. The method of classification in trade secrets cases can not only makethe conviction and sentencing standardization but also broaden judges’ views onidentified modes and calculation methods in judicial practice.