Comparative Study On The Crime Of Infringing Trade Secrets

With the development of the information age,the value of trade secrets has become increasingly prominent,and becomes the core competitiveness of enterprises.Relatively,because of the huge economic benefits brought about by trade secrets,there have been a series of civil disputes and criminal cases involving commercial secrets.The ninth provisions of "Anti Unfair Competition Law" and the 219th of criminal law,the protection mode of civil and criminal legislation of trade secrets is formed.Due to the lag of the amendment of the criminal law,the standards of civil protection and criminal protection are not unified,and there is a lack of coordination,which increases the difficulty and uncertainty in the application of the 219th section of the criminal law.The provision of criminal protection for trade secrets is the realization of the practical significance of the two sexual offense theory.It is also a requirement for the unification of intellectual property crimes,which is conducive to maintaining the stability of the domestic competitive environment and realizing the social function of the criminal law.In this paper,comparative analysis and case studies are used to analyze the necessity and rationality of the criminal protection of trade secrets.Taking the 219th article of the criminal law as the foothold,this paper analyzes the main points and difficulties of the application of law in the process of cognizance of the crime of infringing trade secrets.Through comparative analysis,we sum up the difficulties in application.Based on the above logic line and research methods,this article is divided into five chapters.The first chapter is the preface.It introduces the background,research significance and innovation of this paper.The second chapter is the necessity analysis of criminal protection of trade secrets,corresponding to the nature of criminal object,from three aspects of two times sexual offense theory,intellectual property crime protection and social market economic order.The third chapter is normative comparison.By comparing and analyzing the identification of the specific elements of criminal protection of trade secrets,we find problems and understand problems through comparison.The fourth chapter is the comparison of practice,comparing the legal application of two typical cases,reflecting on the predicament and the causes of the difficulties in the application of relevant laws in China,with a view to summing up the experience of foreign countries in the fifth chapter.To reflect and ponder over the criminal provisions and judicial practice of trade secrets.This article holds that trade secret is a special intellectual property right.The object of the crime of infringing trade secrets is a complex object,and the trade secret is the direct object.Besides,it should also include intellectual property and social market economic order.There are two characteristics of sexual offense in criminal law regulation.The difference between the main points of trial in criminal proceedings is whether there is a requirement for substantial loss or other results.As a result of the existence of the result elements,the separate provisions of the illegal acquisition behavior in the 219th and first paragraphs of the criminal law deserve further deliberation.The illegal use behavior can be divided into two cases,which can be used by themselves and allow others to use it,which can not completely cover the situation of use.If we omit the initiative to let others use the business secrets,we can directly merge into the illegal use of behavior regulation.The whole is divided into two specific cases:illegal disclosure and illegal use.Moreover,the"knowing" in the 219th section of the criminal law is the only case in the relevant provisions of the criminal law.Through the comparison and practice comparison of the criminal protection between trade secrets at domestic and abroad,the procedures for the protection of the scope and elements of the business secret,whether the illegal acts of the regulation are extended to the protection of the infringing products and the results of the major losses and other substantive laws,as well as the procedures for confidentiality provisions in the litigation process,etc.There are differences in the level of criminal protection between Chinese and foreign trade secrets.First,the provisions on criminal protection of trade secrets should clearly define the essential sources of the practical elements and the elements that are not known to the public,so as to define trade secrets and protection scope more accurately.Secondly,in the regulation of illegal acts of infringing commercial secrets,We should pay more attention to the import and export of infringing products and the situation of disclosing trade secrets for overseas organizations.Then,the identification of the consequential elements such as heavy losses will raise the threshold of criminal protection for commercial secrets in China.We can gradually abolish the consequential requirements through the corresponding transitional measures and transform them into the aggravated circumstances of penalty.Lastly,in the aspect of criminal proceedings,We should avoid disclosing commercial secrets to a certain extent because of litigation activities,prevent the two leaks from litigation activities,and also improve the judicial expertise procedures and standards that the facts of infringement of trade secrets,such as the identification of major losses,depend on facts.Studying and drawing on the criminal protection provisions and protection measures of other countries or organizations about commercial secrets will help to clarify the difference between the protection of commercial secrets and the level of international protection.In the hope that Chinese trade secret protection will continue to be improved and judicial interpretations are to be published,we hope that the comparative analysis of this paper can make some contribution.