Criminal Law Regulation On Infringement Of Trade Secrets

Compared with the cost of time and fee of the patent system,the trade secret system can protect commercial information including technical information and business information at a lower cost.It has unique advantages about economic and protection scope.However,there is a risk of leakage or theft if trade secrets are not protected correctly.In recent years,more and more operators have chosen to protect intellectual property with the emphasis on trade secrets,and the problems of trade secret protection have gradually emerged.Our country’s criminal regulation about the infringement of trade secrets is mainly embodied in the provisions of the crime of infringing trade secrets.As the criminal law is about to revise,it is necessary on the on hand to comprehensively review the problems in the criminal regulation of the infringement of trade secrets and on the other hand to promote relatively the suggestions with fairness and efficiency in order to fully realize the function of law in preventing and punishing crimes.This article is divided into five parts to demonstrate the improvement of the criminal regulations on trade secrets.The first part is about the discussion of the basic principles of criminal regulation of infringement of trade secrets.First of all,the concept of trade secrets is determined.It can be found that the reasons why it is difficult to regulate the infringement of trade secrets are the complexity and ambiguity of the concept of trade secrets.Secondly,the legal basis of the criminal regulation of infringement of trade secrets is explored,and it is legitimate to protect the legal interests of trade secrets with the theory of anti-unfair competition.Finally,the types of infringements of trade secrets are briefly described.The second part is about the introduction of the current situation of criminal protection of trade secrets in our country.Firstly,the data and content of criminal justice protection of business secrets are analyzed.Secondly,development of criminal legislation is demonstrated from three different stages.The third part is the comparative analysis of the foreign criminal legislation of trade secret protection.By comparing with the legislative evolution of European and American countries,it is found that the protection of trade secrets in our country follows the civil law in the legislative system,and is inspired from the common lawin the legislative content.In the context of the combination of external pressure and internal motivation,our country can neither completely copy nor exclude foreign legislation.The legal transplants of foreign law in our country should take the Chinese national social condition in account and get inspirations selectively from others.The fourth part is the examination of the issues of criminal regulation of violations of trade secrets.In substantive aspect,the current criminal law is insufficient to regulate international crimes of infringements of trade secrets,and there is a deficiency in distinguishing between different regulatory methods of infringements.The concepts of secrecy,confidentiality,and value in the objective aspects of the crime of infringing on commercial secrets as well as he calculation method of major losses are unclear.In procedural aspect,it exists three problems in regulation of infringements of trade secrets: the lack of criminal-civilian cross-rules,the unclearness of res judicata,and the improper operation of the "three-in-one" trial mechanism for intellectual property rights promoted by the judicial system which makes the application of procedures more complicated.The fifth part is about the proposes for the issues of criminal regulation of violations of trade secrets.As for substantive issues,the main suggestions are subdividing the crime and forming a criminal regulatory system of infringement of trade secrets.Meanwhile,Specifying the objective aspects of the crime of infringing on commercial secrets,and to establish the incriminating rules and exclusion rules.As for procedural issues,it is recommended to establish the rule of first-civil-after-crime in the criminal regulatory procedures for infringement of trade secrets.The discussion of the res judicata of the main sentence and reason of the judgment in the previous criminal judgment and civil judgment is necessary.It is advisable to begin with inviting investigative agencies and public prosecution agencies to form an integrated "three-in-one" trial mechanism.