The Identification Of "Heavy Loss" In Infringing Trade Secret Cases

With the deepening of the reform and opening up to the outside world, China’s economy gradually steps into the period of deep transformation. According to the need of exerting the natural regulatory function of market mechanism, our county constantly emphasizes that we should reduce the interference with economic activities, establish a unified, open market system with regular competition and promote the market to play the decisive role in allocating resources. These policies show that market is playing an increasingly prominent role in economic development.The market economy is developing fast, the social productivity improves sharply, Comprehensive and high-speed growth of the market economy, rapid, all of the people are satisfied with the need for material wealth. However the high-speed development of market economy also brings "side effects":the blindness and contingency of market economy cause increasingly white-hot and deteriorating market competition. Under such circumstances, as the main part of market competition, companies can gain certain competitive edge and economic interests in competition once they get certain trade secret. In this way, constant pursuit of profit becomes powerful driving force for infringing trade secret. Therefore, it is necessary to strengthen the legal protection for trade secret. However, The legislative and judicial practice are still at preliminary stage. Therefore, there is no unified conclusion concerning how to specifically identify "heavy loss".Criminal Law of The People’s Republic of China (1997) brought infringing trade secret into law for thew first time.Article 219 of the Criminal Law settles "whether bringing"great loss to the owner of the trade secret as the demarcation line between crime or not crime. But it does not clearly define the specific meaning of "heavy loss", nor does it give calculational method of this term. Although later "Concerning the standards of Prosecution of Economic Crime Cases" jointly issued by the Supreme People’s Procuratorate and the Ministry of Public Security and "Interpretation of Some Issues on the Specific Application of Law for Handling Criminal Cases of Infringement upon Intellectual Property Rights" jointly issued by the Supreme People’s Court and the Supreme People’s Procuratorate gave further interpretation on "heavy loss", neither of them identified how to specifically identify this term,both of them all make a rephrase on the great losses, but it’s still has no rule of how to identify it.Lack of legislative clarity causes judicatory chaos. During the judicial practice, the author tried to classify the methods of how to identify "heavy loss"in infringing trade secret Cases based on the analysis of 45 verdicts collected. In the judicatory practice of our country, the methods of identifying’significant losses’include:(1) according to the obligee’s actual loss, including the obligee’s selling price of the same product before infringement, and the advance payment of interest that the obligee overpaid during the infringement period; (2) the profit that the infringer made during the infringement period, which can be further divided into:the amount that the infringer infringed multiplies the average sale profit rate of obligee before infringement, the infringer’s sales income subtracts obligee’s cost, the research and development expenses hat the infringer got, the Transfer fees that the infringer got; (3) the value of the trade secret, including:the value of trade secret itself, the techonology licensing fees of trade secret, the R&D costs of licensing fees. It can be said that there are various methods of identifying "heavy loss" in judicatory practice is varied with great diversity, but there is still no method that can be applicable to all infringe trade secret cases. At the same time, since the standards of identifying’significant losses’in judicatory practice are different, the phenomenon of "the same case but different judgments" constantly occurs.In this way, the judicial credibility will decrease seriously.As the law lacking of definition, it results confusion in judicial.,the writer try to class the commercial secrets in this category:depands on the commercial secrets have carrier or not, it can be segmenter into technology information and business information; depends on the conditions of trade secrets, it can be segmenter into:(1) only abtain the commercial secrets; (2) unauthorized disclosure the commercial secrets; (3) use commercial illegally. On the basies, we can instruct a set calculation mode of general applicability and it can apply to all cases.