Study On The Identification Of "Serious Circumstances" In The Crime Of Infringing On Business Secrets

In order to strengthen the protection of business secrets and maintain a good connection with the Law against Unfair Competition and other prior laws and regulations,the 11 th Amendment to the Criminal Law has substantially revised the crime of infringing on business secrets.In addition to deleting the definition of business secrets and modifying the specific expression of behavior types,the crime standard has also been revised to “serious circumstances”.Although the revision of the crime standard conforms to the demand for the protection of business secrets under the background of intellectual property rights and contemporary counterparts,the legislative and judicial interpretations have not made clear provisions on “serious circumstances”,leading to the dilemma and difficulty of imperfect identification standard in practice.It has become a new task and challenge to make a reasonable interpretation of the criterion of “serious circumstances” and clarify the boundary standard between crime and non-crime.Through the concrete analysis of the actual identification pattern of this crime in judicial practice,it is found that no matter before or after the revision of the crime standard,our judicial practice has been taking “amount of loss”,that is,one of the situations of“heavy loss” as the entry threshold,and “amount of loss” is still the key or even the only standard to establish “serious circumstances”.We have yet to get rid of the wrong situation of “only amount theory”.At present,there are three difficulties in the identification of “serious circumstances” : the identification method of “loss amount”is confused,the calculation method of “loss amount” is diversified,and the identification standard of other serious circumstances is unclear.After analysis,the objective existence of the bias in the positioning of the crime theory system,the unclear positioning of the benefit of the crime protection law,the intangibility of the business secret,and the vagueness of the legislation mode of the plot crime led to the above predicament.In view of the causes of the above predicament,firstly,the system of“serious circumstances” should be positioned as the overall evaluation factor,then clarify the law of the crime as the market competition order,so as to provide fundamental guidance for the reasonable interpretation of “serious circumstances”.Secondly,it is necessary to strictly follow the principle of causality and conduct a specific problem analysis on whether there is an objective and real connection between the violation of business secrets and the “serious circumstances”,so as to reasonably determine whether the “serious circumstances” are established,ensure judicial justice and strict,and realize the organic unity of punishing crimes and human rights protection.Thirdly,it is necessary to make clear that the value of business secrets is marketable and business secrets are non-proprietary,so as to provide the recognition basis for“serious circumstances”.Finally,the specific criteria for determining “serious circumstances” can be based on the above analysis,and factors unrelated to the interests of the protection law can be deleted from the elements of the act based on the purpose of legal interest protection,and the division logic of “amount of loss” and other serious circumstances can be adopted.The classification way of thinking is used to reasonably improve and delimit the identification criteria of “amount of loss” and other identification factors of serious circumstances,affirm the judgment value of some objective factors in “serious circumstances”,and deny the judgment value of some objective factors,the special identity of the subject of the crime and subjective factors in “serious circumstances”.