Determination Of "Serious Circumstances" In The Crime Of Infringing Commercial Secrets

With the promulgation of The Eleventh Amendment to the Criminal Law,the criminal threshold of the crime of infringing on commercial secrets in Article 219 of the Criminal Law is changed from "heavy loss" to "serious circumstances"."Serious circumstances" is the constitutive element of the crime of infringing on business secrets,which plays an important role in the threshold of the crime and non-crime of infringing on business secrets.In modified commercial secret protection in our country also gradually with international protection of intellectual property rights,for the judge in the judicial practice constitute infringement of commercial secrets crime provides a new path,and in the process of trial for criminal illegal crime to make a more comprehensive evaluation,the modifications also enlarged the scope of business secret protection,can according to the needs of social development and the reality,Reasonable explanation of the threshold of incrimination.But not in the national judicial explanation in detail to "serious" situation before,because of the "significant loss" into the threshold of sin in the suitable time for a long time in our country,"serious" in the process of concrete applicable remains controversial,the original reference can continue to apply,the new judicial interpretation and judgment into the threshold of sin "serious" should decide how to issue.By searching the judicial interpretation of the relevant crimes with "serious circumstances" as the threshold of incrimination and combining with judicial cases,the classification analysis of the determination of "serious circumstances" is carried out,and the beneficial enlightenment of the determination of "serious circumstances" is obtained by comparing the existing judicial cases of the crime of infringing on commercial secrets.First of all,comparing with the section on intellectual property crime sales crime of infringing copies,raises the infringing products haven’t sales,not the actual damage caused by the holder of the forms of crime problems,combined with Germany of infringing business secret criminal law and judicial practice,according to the provisions of the existing system in China,to determine "if the circumstances are serious" should not have failed,The amount of unsold products shall be included in the criminal amount according to certain weights;Secondly,by comparing the crime of false advertisement which also has the dual property of social legal interest and personal legal interest,the author thinks that the connection between the crime of infringing trade secrets and the anti-unfair competition law should be strengthened in the identification process.Finally,based on the analysis of the above judicial cases,non-monetary factors should be added in the determination of "serious circumstances" in addition to the amount of crime.Stealing commercial secrets "serious" cognizance rules to build include: first,to determine "if the circumstances are serious" identification shall follow the principle of legal interest orientation and tolerance principle in criminal law,law benefit guiding principle means that this crime should be paid more attention to the protection of the social law benefit,in determining the "serious" elements identified its harmfulness should reflect to the market economic order;The principle of modesty and restraint of criminal law means that criminal law,as a post law,plays a role of guarantee,and the boundary between crime and non-crime should be clearly demarcated.Secondly,it clarifies the scope of the cognizant elements of "serious circumstances" and determines that the elements only include objective facts without considering the subject and subjective elements.Then summarizes stealing commercial secrets "serious" that needed to consider the factors,and the sin of stealing commercial secrets quantity factors can be divided into value elements and the amount of elements to determine the amount of calculation in the rational license fee and the rules of the illegal profits shall prevail,puts forward the commercial secrets open,behavior,social influence three times the amount of elements.Finally,the reasonable construction of the determination of "serious circumstances" of the crime of infringing on commercial secrets by referring to the mode of judicial interpretation.