| As a kind of intellectual property rights,the denotation and connotation of trade secrets are not uniform in various countries.In our country,trade secret refers to the technical information,business information and other business information that is not known to the public and has commercial value,and the right holder takes corresponding confidentiality measures.In terms of protection system,it has established administrative protection system with "Anti-Unfair Competition Law" as the core,civil protection system with civil code as the core and criminal protection system with criminal law as the core,forming a relatively complete system of administrative,civil and criminal liability.In our country,crimes of against trade secrets include crimes of infringing on trade secrets and the crime of stealing,spying,buying,and illegally providing trade secrets for foreign countries.The biggest difference between the two is that the beneficiaries of the infringement of trade secrets are different: one is domestic organizations,institutions and personnel,and the other is overseas.According to the right holder’s burden of proof of trade secrets and trade secrets are not unique,novel characteristics,this paper holds that trade secrets are commercial information such as technical information and business information with commercial value which is kept secret by obligee by taking appropriate confidentiality measures so that the public is not aware of its specific content.The fact that the information with the same content as the trade secret is known to the public is not the reason to deny the establishment of the trade secret,but only a part of the defense of the infringer to prove that he has not committed the infringement.Corresponding confidentiality measures shall mean that the confidentiality measures taken shall reach an appropriate,effective and identifiable degree,and the signing of a general and principled confidentiality agreement shall not be regarded as the adoption of corresponding confidentiality measures.The lowering of the threshold for the crime of infringing trade secrets leads to the advance of the time of the infringement that can be investigated for criminal responsibility,and some behaviors without damaging consequences can also be convicted.At the same time,the difficulty of proving guilt is reduced accordingly,and the incriminating circumstances can be used to calculate the amount of loss for conviction.In the process of conviction,different starting points and completion standards should be determined according to different behavior modes.In order to avoid the excessive expansion of the criminal law,it is necessary to expand the types of obstruction of illegality and exemption grounds,reduce the conviction rate correspondingly,replace criminal liability with civil liability,and reduce the impact on enterprises as much as possible while safeguarding the rights and interests of the right holders.In the application of law,it is necessary to pay attention to the different possible infringing objects of different torts,which leads to different relations with the crime of infringing trade secrets.Some are laws crosscompetition,and some are imaginative competition.In the specific selection of the principle of the application of law,we should make a comprehensive analysis according to the specific behavior mode,behavior object,criminal policy,and existing provisions,and specifically judge whether it is a substantial one crime or several crimes,and whether several crimes is treated by one crime or several crimes combined punishment.Attention should be paid to the mutual recognition of substance and the connection of procedure between criminal and civil when trying cases of infringing trade secrets.In practice,due to the different burden of proof and standard of proof,when determining the fact of tort and the nature of the act,even if based on the same evidence,the same fact may have three results,civil non-infringement is bound to be criminal innocence,criminal guilt is bound to be tort,but criminal innocence civil is not necessarily not tort.At the same time,in the procedure selection,it should generally adhere to the principle of criminal procedure before civil,in relation to the right holder confirmation and trade secret identification,can consider civil procedure before criminal. |
