Research On The Judicial Determination Of Crime Of Infringing Trade Secrets

With the rapid development of the socialist market economy and knowledge economy,all walks of life have increased competition for talents and information resources.People's awareness of intellectual property rights has gradually risen.And the entire society has increasingly attached importance to the protection of trade secrets.The establishment of a reasonable and effective trade secrets protection system has already become an important part of national legal construction and economic construction.In terms of protection of the criminal law,it stipulates the crime of infringing trade secrets.There is no lack of criminal legal protection for the legal benefits of trade secrets.Although this crime has existed for a long time in China's criminal law,the issue of judicial determination in practice has caused a lot of controversy.In the judicial determination of the crime of infringing trade secrets,it is the primary issue to judge whether the information involved in the case belongs to trade secrets.In practice,the most controversial issues are the customer lists,computer software source codes,and "passive information" in production and management.When making a determination,judicial personnel should combine the specific facts to verify whether the information complies with the privacy,value and confidentiality of the trade secrets.If the information involved in the case complies the three major characteristics of trade secrets at the same time,it should be regarded as a trade secret.According to the crime of infringing trade secrets,the acts of direct infringement on trade secrets can be divided into "infringement on trade secrets by improper means","infringement on trade secrets by disclosure and use" and "infringement on trade secrets by breach of contract".And according to different means and methods,these behaviors can be further classified.When making judicial determination,judicial personnel need to know the boundaries and various manifestations of these behaviors,and carry out multi-party demonstrations of disputed issues.The harmful consequences in the crime of infringing trade secrets are "significant losses" and "particularly serious consequences".They are not limited to direct economic losses.They also include loss of competitive advantage,loss of reputation and bankruptcy.The determination of "significant losses" should adopt a comprehensive model.Sometimes the loss of interest of rights holders can be directly identified.And when it cannot be determined directly,there are two solutions.If the value of the trade secrets is partially lost,illegal profits of the perpetrator will be regarded as the loss.If all the value is lost,the value of the trade secrets will be regarded as the loss.The nature of "particularly serious consequences" is the same as the nature of "significant losses".The above determination methods are also applicable to "particularly serious consequences".The offense form of the crime of infringing trade secrets is criminal intention,including direct intention and indirect intention."Knowing" in this crime is just knowing.In judicial practice,the confirmation of "knowing" needs to be presumed.The "shall know" in the crime means that it is probable that the perpetrator know something.It also needs to be presumed.The process of determination is divided into three steps.First,establish the normal relationship between "shall know" and the basic facts.Second,prove the basic facts.Thirdly,if the perpetrator fails to submit the valid counter-evidence,then we can determine the "shall known".