Calculation Of Lost Profits Caused By Infringement On Trade Secrets

Business secrets have become a hot topic during the international trading issues and judicial practice.The revised ? Law of the People's Republic of China on Anti-Unfair Competition?(the AntiUnfair Competition Law)promulgated on April 23,2019 is mainly focused on amending the terms related to business secrets,which means the importance of protecting business secrets under the complex international situation.Nowdays,the situation for protection of business secrets is not optimistic in our country.On the one hand,the frequent occurrences of infringement cases of business secrets has brought huge economic losses and commercial difficult for obliges and caused the disorder of market.On the other hand,the legislation and judicial practice about business secrets protection relatively lag behind,and there are no practical legal provisions and judicial interpretations in legislation to for judges.The existing legal provisions in the judiciary are general but not in detail.So obliges can not obtain effective protection.Infringers are unbridled because of the situation and obliges feel helpless during the infringement of business secrets.This situation is obviously inconsistent with China's efforts for establishing a socialist modern country ruled by law.The biggest difficulty in the trial of infringement about business secrets lies in calculation of the scope of damages.As we know,in the latest Anti-Unfair Competition Law,there are four kinds of compensation methods for calculation: the loss of obliges,namely actual loss,the benefits obtained by infringers,licensing fee and statutory compensation.At the same time,it has determined that the four calculation methods should be used in according the subsequence.This also means that the method of calculating the actual loss of obliges should be used firstly.So,obliges should provide the proof and the actual amount of his loss according to law.Otherwise,obliges would not be supported by the court,and eventually the court may apply statutory compensation for calculating the loss.Which is helpless for obliges.This article studies the scope for the calculation of actual loss and discusses the difficulties in the calculation of loss of business secrets.In the paper,the actual loss means the loss of benefits.The authors has searched the current academic papers and academic works on compensation for damage of business secrets,and found that before 2017,many scholars had studied the problem of reversion of burden proof,However,the author believes that reversion of burden proof can not solve the problem of calculation of compensation for damage.The author believes that in specific cases,there will be many forms of actual loss.First of all,the scope or manifestation of actual loss should be clarified.The author believes that the actual loss types include but not limited to the nine categories pointed out in this paper.In order to facilitate academic research,the nine categories are divided into three categories according to the inherent characteristics and linkages.There are marketing dimension and other dimension.Marketing dimension includes sales loss,price erosion,future loss of sales profits,increased expenditure of obliges;Other dimension includes incidental loss of non-trade secret part,loss of secrecy,loss of licensing fee,the change of commercial value and pre or post judgment interest of lost profits.Each kind of actual loss has different characteristics and the applicable calculation method for each kind of actual loss is also different.The purpose of this paper is to solve the problem which makes the judges feel helpless in the current judicial practice and help obliges and the judges find the way to calculate the actual amount of damages accurately,By this way,judges and obliges can determine the amount of damages and use it as the basis of final judgment.In addition,the author also makes a preliminary discussion on the calculation of the actual loss and the expression of actual loss.Author studies it from three dimensions: the burden of proof,the standard of proof and the way for providing the proof.The scope and calculation method of the actual loss should be proved.So,in order to protect the legitimate rights of obliges effectively,we must formulate the specific standards and methods of proof for the compensation of business secret according to the general framework stipulated in civil procedure law.