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

The determination of “heavy loss” of the crime of infringing trade secret is a difficult problem in judicial practice.As far as the crime of infringing trade secret is concerned,“heavy loss” is the key entry point for the tort to be included in the scope of criminal law regulation,and the premise and basis for conviction and sentencing of the crime.At the same time,whether the “heavy loss” can be reasonably determined is also related to the effectiveness and further improvement of the criminal legislative protection of trade secrets,as well as the effective restrictions on the discretion of judges and the operation of judicial power.There is no doubt that the determination of “major loss” is very important.In order to identify the “major loss” of the crime of infringing trade secrets,it is necessary to clarify that “major loss” is limited to material loss.The damage of business reputation,bankruptcy loss or loss caused by competitive advantage included in the “major loss” can only be reduced to material loss,and the loss of business reputation that cannot be reduced to material loss is not included in its connotation.Moreover,the “major loss” includes not only the loss of property interests directly related to the infringement,but also the loss of expectable earnings and indirect economic losses such as the expenses for investigating the infringement and saving the damage.At present,there are many different opinions on the determination of “heavy loss” in the theoretical circle.In addition to the theory of loss calculation of obligee and the theory of profit calculation of infringer,the theory of application order of multiple standards,the theory of combination of tort and recognition standards are becoming more and more mainstream in recent years,and the recognition ideas put forward are diverse.In fact,there are some feasibility and rationality in these theories,but there are also limitations and questionable points.At the same time,the lack of clarity and guidance in legislation has also led to a lot of disputes in judicial practice.The recognition standards of judicial practice in various regions are quite different,either based on the actual loss of the obligee,or on the illegal profit of the infringer,or on the R & D cost of trade secrets,or on the licensing fee and transfer fee.All kinds of standards used in judicial practice are not universal formulas,but are relatively reasonable for the corresponding situation,and even some judgments are criticized.When it comes to the reasonable determination of “heavy loss” of the crime of infringing trade secret,we should first follow the three principles of causality theory,the priority of the protection of the rights and interests of the obligee,and the modesty of criminal law.Moreover,on this issue,it is unrealistic to rely on a single identification standard.Open type thinking is the breakthrough to deal with difficulties.We should classify the cases according to the specific behavior terminal of infringing trade secret,and make clear the corresponding “heavy loss” identification standard,so as to form an effective correspondence between the identification standard and the facts of the case.For the type of pure illegal acquisition,if it is a technical trade secret,the license fee and transfer fee should be used as the identification standard;if it is a business trade secret,it should not be regarded as a crime.For the type of illegal disclosure,if the disclosure object is an unspecified majority or even the public,the self value of the trade secret should be regarded as the recognition standard of “significant loss”;and if the disclosure object is a specific third party,the improper income or licensing fee of the actor should be regarded as the recognition standard.For the last type of use,the recognition of “heavy loss” should adopt the sequential comprehensive recognition standard of “actual economic loss of obligee-illegal profit of infringer-development cost of trade secret + licensing fee”.