Research On The Object Of The Crime Of Breaching Commercial Secret

Commercial secret are commonly known as business secret, it is the inevitable outcome in the condition of market economy. It appears along with the rise of industrial revolution and commodity economy, and develops along with the prosperous of market economy. According to the academic community, commercial secret is technical and operational information which is unknown to others, and has economical benefits to the holders, has practical application value and is kept secret by the holders. So, commercial secret has four traits:confidentiality-commercial secret is unknown to the public; value-commercial secret can bring economical benefits to the holders; practicability-commercial secret must be practical; manageability-commercial secret is the technical and operational information which is taken secret measures by holders.The acts of committing the crime of breaching commercial secret are various, the most common classification methods are, firstly, according to the order of legal provisions; secondly, according to the traits of act of perpetrating; thirdly, according to the manner of act of this crime. We adopt the first classification method and consider related specific content of objective aspect in our criminal law and the order of legal provision. So, the act of this crime can be concluded to two categories and four types. The first category is typical infringement which can be divided into three types. The first type is acquiring commercial secret by improper means, to be specific, acquiring commercial secret by the means of theft, inducement, coerce and other improper means. The second type is abusing the commercial secret acquired by improper means, including, disclosing, using and allowing other use commercial secret acquired by improper means, to be specific, these acts, may include, rob, fraud, phone hacking, inducing other to let out a secret, are immoral and illegal in general. The second category is quasi-infringement act which is regarded as the crime of breaching commercial secret. The act mainly refers to the behavior of the second paragraph of the219th provision in the criminal law, that, knows perfect well or should know the act lists in the preceding paragraph, and still acquire, use or disclose other’s commercial secret.On the basis of clarifying the category of the criminal act of breaching commercial secret, the identification of significant loss in the crime of breaching commercial secret can be divided into two categories in judicial practice. The first category is technical information. When infringers sale and produce the product after acquiring commercial secret by improper means, the tort compensation should be identified by the interest the infringers get via infringement and ordinary license price of commercial secret or market transfer price according to the principal of high not low. When the infringer transfers commercial secret acquired by improper means, the tort compensation should be identified by the transfer price reached by the infringers and the third person or the price permission to use. When the infringers disclose the commercial secret by improper means or agreement relation, the economic value of commercial secret can be included in the standard of significant loss. The second category is operational information. In the case of infringing operational information, the tort compensation should be identified by actual profit from infringer infringing commercial secret. If it is difficult to find out profit condition, we should not identify the case as a crime, but turn to civil remedies.