Determination Of "Heavy Loss" In Crime Of Infringement Of Commercial Secrets

In accordance with Article 219 of Criminal Law of The People's Republic of China,one of the determination conditions for Crime of Infringement of Commercial Secrets is causing heavy loss to the obligee,so,in this crime,whether or not to cause heavy loss is one of the core factors to determine if the perpetrator is legal or illegal.However,now,there is no any laws or regulations in which the calculation scope and method of "heavy loss" is clearly defined,which leads to different determination thoughts in various judiciary authorities.Looking back upon the origin for protection system of commercial secrets-anti-unfair competition thought,we can find that the Crime of Infringement of Commercial Secrets provides protection for fair competition order and personal reasonable commercial opportunity of the obligee actually,among which,the damage degree of competition order is judged by the reasonable commercial opportunity lost from the obligee.So,the scope evaluated by "heavy loss" shall be limited to the economic loss caused by losing reasonable commercial opportunity.Meanwhile,being a secret intellectual property,the commercial secret has special protection method of legal rights,namely,to protect commercial secret through forbidding other people to carry out illegal infringement,not to protect commercial secret through granting the obligee to have exclusive right.Due to the fact that illegal behaviors is diversified and open,the commercial opportunities damaged by different illegal behaviors is not completely same,which objectively decides that we shall adopt different determination standards to evaluate loss caused by different behaviors.As result,based on only typology of illegal behavior and in accordance with unique features of various illegal behaviors of infringement of commercial secrets,we shall fully build the detailed determination channels for "heavy loss" correspondingly,and then provide effective reference for unifying the determination standard of "heavy loss" from judicial practices.