An Empirical Study On The Judicial Determination Of The Crime Of Infringing Trade Secrets

With the continuous advancement of world economy and international globalization,intellectual property rights have increasingly become an important manifestation of a country’s comprehensive national strength,and countries are paying more and more attention to the protection of intellectual property rights.However,with the continuous improvement and development of intellectual property rights,the number of intellectual property infringement crimes is gradually showing a linear growth trend.As a special intellectual property,trade secret can not only bring economic benefits to the obligee,but also bring competitive advantage.Its importance is increasingly prominent.With the increasing number of cases of infringement of trade secret,civil and administrative protection is not enough to cope with the current situation.Therefore,criminal protection of trade secret should be strengthened.In2020,as the "big year" of trade secret protection,there are not only legislative amendments,but also relevant judicial interpretations issued by the Supreme People’s Procuratorate and the Supreme People’s Procuratorate of the people’s Republic of China.Based on the empirical analysis,this paper searches the whole case of the crime of infringing trade secrets,and analyzes the main difficulties in the determination of the crime of infringing trade secrets in judicial practice,such as the determination of trade secrets,the calculation of heavy losses,whether the judicial expertise opinion is adopted,etc,It is found that although the judicial interpretation has refined the relevant characteristics of trade secrets,there is still no clear standard for how to define the easily available and generally known trade secrets that are not known by the public,and how the degree of confidentiality measures of trade secrets should correspond to specific trade secrets one by one also needs to be further clarified.Not only that,although the amendment changes the standard of the crime of infringing trade secrets from "heavy losses" to "serious circumstances",it is still necessary to apply "heavy losses" in practice,and how to define "serious circumstances" also needs to be explained separately.For the judicial expertise of trade secrets,the scope and content of judicial expertise should be clear,and the scope of judicial expertise should be the non-public knowledge of technical secrets.In terms of the penalty allocation of this crime,through the application of penalty in practice,it is found that the deletion of detention on the basis of improving the freedom penalty can not play a real role in cracking down on crime.Based on the characteristics of trade secret crime,it is suggested to increase the qualification penalty and change the current penalty allocation,which should be based on the fine and supplemented by the freedom penalty.