The filing jurisdiction of cases of infringement of trade secrets is the most important issue in the filing jurisdiction of cases of infringement of trade secrets. Article 19 of the Criminal Procedure Law stipulates: "The investigation of criminal cases shall be conducted by the public security organs, unless otherwise provided by law. Private prosecution cases shall be directly accepted by the People's Court." According to Article 210 of the Criminal Procedure Law and relevant judicial interpretations, Private prosecution cases 1* * * include three categories: The first category is cases that are handled after notification in accordance with the provisions of the criminal law (including cases of insult, slander, violent interference with freedom of marriage, abuse, embezzlement, etc.). This kind of private prosecution case is a pure private prosecution case and is exclusive, that is, whether to prosecute depends entirely on the victim, and the public security organs or the People's Procuratorate are not allowed to take the initiative to exercise the right to prosecute. The second category is minor criminal cases where the victim has evidence to prove the case. The "Interpretation on Several Issues Concerning the Implementation of the Criminal Procedure Law of the People's Republic of China" (hereinafter referred to as the "Interpretation of the Criminal Procedure Law") issued by the Supreme People's Court in June 1998 specifically explained this type of private prosecution cases and defined eight situations. Including cases of intellectual property infringement stipulated in Section 7 of Chapter 3 of the Criminal Law (except those that seriously endanger social order and national interests). For these eight cases, "If the victim directly files a lawsuit with the People's Court, the People's Court shall accept it in accordance with the law." If the evidence is insufficient and the public security organ can accept the case, or the defendant may be sentenced to a fixed-term imprisonment of more than three years, it shall be transferred to the public security organ for investigation. . "The third category is cases in which the victim has evidence proving that the defendant has violated his personal and property rights and should be investigated for criminal liability in accordance with the law, but the public security organ or the People's Procuratorate will not pursue the criminal liability of the defendant. According to the above provisions, the first category of private prosecution cases does not include Crimes of infringement of trade secrets, but the second and third categories of private prosecution cases can include crimes of infringement of trade secrets. Therefore, in my country, private prosecution and public prosecution are combined for the crime of infringement of trade secrets, and the relationship between the two is overlapping. In terms of: (1) Public prosecutions can only be initiated for criminal cases that seriously endanger social order and national interests (2) Public prosecutions can only be instituted for other minor cases where the defendant may be sentenced to more than three years in prison. The defendant may be sentenced to fixed-term imprisonment of not more than three years), and may initiate public prosecution or private prosecution. (4) For criminal cases of infringement of trade secrets with insufficient evidence, regardless of whether the circumstances are minor, public prosecution and private prosecution may be instituted. In cases where the victim has evidence to prove that the defendant should be held criminally responsible in accordance with the law, but the public security organ or the People's Procuratorate does not hold the defendant criminally responsible, the victim can file a private prosecution. This is a case of "public prosecution to private prosecution", which is a remedy for the above situation. Therefore, it can also be called remedial private prosecution. It can be seen that only in the two cases (3) and (4), both private prosecution and public prosecution can be carried out. The right of private prosecution and the right of public prosecution are parallel and independent, but only one can be selected, that is. If the victim chooses private prosecution, he can no longer choose public prosecution; if he chooses public prosecution, he can no longer choose private prosecution. It should be noted that in these two cases, the direct intervention of the state's public power is not excluded, and the right of public prosecution still exists independently. That is to say, if the victim does not file a private prosecution and does not request the public security organs to file a case or the People's Procuratorate to initiate a public prosecution, the public security organs and the People's Procuratorate can also take the initiative to investigate and prosecute in accordance with the law. Of course, if there is a conflict between the right of private prosecution and the right of public prosecution, the victim should be allowed to have priority. , that is, if the victim wants to choose private prosecution, the right of public prosecution should be automatically surrendered. It is worth mentioning that for case (5), the Supreme People's Court Research Office responded to the Heilongjiang Higher People's Court on July 25, 2000: " For public prosecution cases in which the victim has evidence proving that the defendant has violated his personal rights and property rights, criminal liability shall be investigated in accordance with the law, and the defendant may be sentenced to fixed-term imprisonment of more than three years. However, the public security organ or the People's Procuratorate has made a written decision not to pursue the case, and the victim may To file a lawsuit directly with the People's Court, the People's Court shall accept it in accordance with the provisions of Article 170, Item 3 and Article 171 of the Criminal Procedure Law: "It can be seen that according to this reply, the above situation (5) can only be limited to "the defendant may be sentenced to In my opinion, there are some problems with this reply: First, Article 210 of the Criminal Procedure Law and the Interpretation of the Supreme People's Court on the Criminal Procedure Law do not impose this restriction, and the reply does not After discussion by the Judgment Committee of the Supreme People's Court, the decision was made by the research office, which is obviously ultra vires, and its legal validity is doubtful. Second, in cases where the defendant may be sentenced to a fixed-term imprisonment of less than three years, as mentioned above, the victim can choose public prosecution or private prosecution.
If he chooses public prosecution, he can no longer choose private prosecution. If the victim did not choose private prosecution in advance, but directly requested to file a public prosecution, then after the public security organ or the People's Procuratorate decides not to pursue criminal responsibility, according to the approval, the victim can no longer exercise the fifth situation (i.e., "convert public prosecution to private prosecution") Right to private prosecution relief. Obviously, this is depriving the victims of some cases of their litigation rights without any legitimate reason or reason. Many scholars are critical of the prosecution provisions for existing intellectual property crimes, including the crime of infringement of trade secrets. At present, many people agree that the crime of infringement of intellectual property rights should be included in the scope of private prosecution crimes, except for cases where the circumstances are very serious or seriously endanger national interests. The reason is: when it comes to the way of prosecuting intellectual property infringement crimes, most countries implement the principle of combining private prosecution with public prosecution, with private prosecution as the mainstay and public prosecution as a supplement. Such as Germany, Austria, Italy, Thailand, South Korea, etc. This is mainly because the crime of intellectual property infringement is first and foremost a crime that infringes upon the legitimate rights and interests of the right holder. Therefore, it is up to the victim to decide whether the perpetrator should activate the right to punish, and the state generally will not interfere too much. In fact, in practice, cases of intellectual property infringement, especially cases of infringement of trade secrets and counterfeit patents, are generally handled and prosecuted by the victim urging the prosecutorial office. In this case, intellectual property infringement crimes should be included in the scope of private prosecution crimes, and intellectual property rights holders should be given more freedom to choose legal remedies, which is more conducive to the legal protection of intellectual property rights and the promotion of economic exchanges in modern society. There is also a view that public prosecutions should be initiated for criminal cases of infringement of commercial secrets that seriously endanger social order and national interests, and the procuratorial organs should exercise the power to prosecute criminals on behalf of the state to reflect the protection of social interests and national interests by the state's public power. . For ordinary cases of infringement of trade secrets, a mode of coexistence of public prosecution and private prosecution should be adopted, that is, in principle, private prosecution should be adopted. However, if it is difficult to obtain evidence that the perpetrator has infringed on trade secrets by relying on the rights holder's own strength, and the existing preliminary evidence can prove the existence of the infringement of trade secrets, it is more conducive to use the public power of the state to complete the investigation and evidence collection and initiate a public prosecution. criminal behavior. However, in the author's opinion, although the above two views are covered with reasonable theoretical cloaks, they only "look beautiful", are divorced from China's judicial practice, and are incompatible with reality. Criminal cases of infringement of trade secrets are highly concealed, intelligent and complex. Obtaining evidence is more difficult than in other criminal cases. Private prosecutors do not have the power to compel investigation and are often unable to extract, fix or properly preserve evidence on their own, making it difficult to preserve and fix evidence. In the case where the standard of proof in criminal proceedings is quite high and the private prosecutor's ability to prove is limited, it is difficult for the private prosecutor to fulfill the burden of proof and form a completely complete chain of evidence by relying on his own strength alone. Therefore, even if the private prosecutor has a strong desire to pursue the criminal liability of the infringer, it is powerless and difficult to realize. He can only watch the infringer escape the criminal law. In addition, as mentioned above, the reason why trade secrets require criminal protection is that criminal law can provide a more effective incentive mechanism than civil law, and this "more effective" advantage is mainly reflected in the intervention of public powers, including the investigation of public security agencies. , the procuratorate initiated a public prosecution. From this point of view, if we follow the first point of view and change the prosecution method for the crime of infringement of trade secrets to private prosecution, it will not only violate the purpose of criminal protection of trade secrets, but also make the criminal protection of trade secrets unsatisfactory. To add insult to injury, Article 219 of the Criminal Law has become a mere formality and has lost its deterrent effect. As for the second point of view, it seems to be more comprehensive and ideal. The victim has full choice in the way of prosecution, and his right to appeal seems to be protected at multiple levels. However, this view ignores the "hidden rules" in reality. A little empirical investigation will reveal that the case-handling personnel and funds of the economic investigation agencies of our country's public security organs are very tight and cannot cope with a large number of various economic crime cases, especially criminal cases such as infringement of trade secrets that are difficult to obtain evidence, high-cost, and risky. , the public security organs have very little enthusiasm and enthusiasm, and often refuse to file cases or delay the filing of cases. Therefore, for ordinary criminal cases involving infringement of trade secrets, such "hidden rules" have been formed in judicial practice: if the victim does not provide "sponsorship" for handling the case, or finds connections or acquaintances, it is often difficult to file a case.
In this case, if, as the second view says, ordinary criminal cases of infringement of trade secrets are changed to a prosecution model in which private prosecution and public prosecution coexist, although this makes the investigation by the public security agency not the only remedy channel that the victim can rely on , the victim can transcend public authority to help himself, but it also makes the investigation of the public security organs a dispensable and unnecessary duty, and the public security organs have more excuses and reasons not to file the case. In fact, according to the author's understanding, the vast majority of victims in trade secret criminal cases do not care whether they have the right to private prosecution. They basically hope to protect their trade secrets by relying on the compulsory investigation power of the public security organs. So it can be said that neither the first view nor the second view is what the victim expects. The author believes that the current provisions on the prosecution method for the crime of infringement of trade secrets can not only force the public security organs to proactively crack down on serious criminal cases in accordance with their powers, so that the rights of victims can be effectively protected when they suffer heavy losses, but also allow some minor criminal cases to be treated to a certain extent. The diversion and filtering reduce the burden on the public security organs, which reflects the superb art of balance and legislative wisdom. It is quite reasonable, so there is no need to make any modifications. The above knowledge is the editor’s answer to this question. If readers need legal help, they are welcome to seek legal advice.
Legal objectivity:
Object elements The object infringed by this crime is the right to trade secrets (the legitimate rights and interests of the owner of trade secrets) and the normal and orderly market economic order protected by the state. The object of this crime is trade secrets. The so-called trade secrets, according to the provisions of the Anti-Unfair Competition Law and Paragraph 3 of this Article, refer to technical information and technical information that are not known to the public, can bring economic benefits to the right holder, are practical, and are kept confidential by the right holder. Business information. Obviously, the trade secrets referred to in Chinese law include technical secrets (relevant industrial production technology, technical secrets other than patented technology or product formulas, which are not independent or integral, but must be attached to a certain patent or trade secret). Its scope includes not only technical information such as production skills, process secrets, and product formulas, but also business information such as business experience, business strategies, and trade secrets. The so-called "not known to the public" here means that the information cannot be obtained directly from public channels, and the so-called "can bring economic benefits to the right holder and is practical" means that the information has certain economic benefits or competitive advantages. The so-called "right holder takes confidentiality measures" includes entering into a confidentiality agreement, establishing a confidentiality system and taking other reasonable confidentiality measures. The so-called "right holder" refers to citizens, legal persons or other organizations that have ownership or use rights to trade secrets in accordance with the law. The so-called "technical information and commercial information" include design procedures, product formulas, production processes, production methods, business decisions, Customer list, source information, production and marketing strategies, bidding, etc. As a kind of intellectual property rights, trade secrets have been recognized by the Paris Convention for the Protection of Industrial Property and the General Agreement on Tariffs and Trade. It has the following characteristics: (1) Concealment, that is, it is not known to the public. Commonly used technologies and common business methods that are already known to the public do not fall within the scope of trade secrets. The confidentiality of trade secrets is achieved through deliberate confidentiality measures taken by the owner of the trade secret. Therefore, judging whether the right holder has taken confidentiality measures often becomes one of the key factors in determining whether a trade secret is constituted. This confidentiality of trade secrets is also what distinguishes them from patents. The content of a patent must be public. The essence of a patent is that the state allows inventors of advanced technologies to possess the exclusive rights to their inventions for a certain period of time. But only if the inventor makes his invention public. The reasons why trade secret obligees do not apply for patent protection: First, the trade secret obligees do not apply for patents in order to save patent costs; Second, the trade secret obligees want to keep their trade secrets indefinitely (patent protection is limited) ; Third, because trade secrets have not yet been included in the scope of patent law protection or do not meet the "three characteristics" standards required by patents; fourth, some trade secrets are still reserved parts of patents. The owner of a trade secret does not intend to obtain exclusive rights recognized by the Patent Law, but intends to maintain actual exclusive rights through confidentiality, which is also permitted by law. Patent law does not abrogate the right to confidentiality. (2) Property, that is, having value and use value. Trade secrets can bring economic benefits to the right holder, but once leaked, they will cause economic losses to the right holder. No matter how much investment is made, if the research results do not have this attribute, it does not meet the concept of trade secrets. From an economic point of view, this attribute of trade secrets is a kind of knowledge-based commodity, which is expressed as property material rights and interests. From a legal perspective, it can be regarded as a paid transfer of property rights.
The owner of a trade secret has the right to possess, use, and dispose of the trade secret and obtain profits, and has the right to prevent others from obtaining and using the trade secret without legitimate legal reasons. (3) Sharability, that is, trade secrets may be mastered by multiple people at the same time. There may be two or more right holders who have mastered the same trade secret independently at the same time, but why do they have no (or no) horizontal relationship, so they all think that they are the only right holders of the trade secret. The owner of a trade secret only has the right to dispose of the trade secrets he owns, such as applying for a patent first, or transferring the trade secrets to him, but he cannot fight against fair competition. First, he cannot prevent others from independently researching and working on the same business secrets. Second, he cannot prevent others from re-researching the product process and design trade secrets based on the products he puts on the market, which is the so-called "return to the original design." This shareability of trade secrets is reflected in its transfer, which only transfers the right to use the trade secrets, and the ownership cannot be transferred. Because even if the ownership is transferred to the transferee, the technical skills, product formulas, technical secrets, business decisions, business experience and other elements that constitute the trade secret will still remain in the memory of the original right holder and will not change with the transfer of the trade secret. disappear from the mind. In the same way, the legal owner of a trade secret will not directly and completely lose ownership of the trade secret because the trade secret is stolen, but will only indirectly and partially lose the right to actually monopolize, utilize, transfer and benefit from the trade secret. Simply put, the shareable nature of a trade secret makes it impossible to transfer ownership like tangible property. Infringement of trade secrets not only infringes upon the legitimate rights and interests of the owner of trade secrets, but also infringes upon the fair and orderly market order. Objectively speaking, this crime is manifested as behavior that violates national anti-unfair competition laws and regulations, infringes on trade secrets, and causes heavy losses to the owner of trade secrets. According to Article 1 of this article, there are three types of infringement of trade secrets, namely: 1. Obtaining the right holder’s trade secrets through theft, inducement, coercion or other unfair means. Among them, theft refers to the act of secretly stealing trade secrets in a way that they believe will not be discovered by the owner, user and custodian of the trade secret. The stolen things can be originals or copies, or they can be secretly copied by oneself, such as secretly photographed or illegally recorded. Inducement refers to using material or material benefits such as high salary, money, material, working conditions, help with household registration, job transfer, employment, study, studying abroad, or even playing with women as bait to make associates, trustees, and insiders who know business secrets and others disclose business secrets to them, such as providing originals or copies, oral and written notifications, etc. Coercion refers to threatening and intimidating people who know business secrets by killing, injuring the body, injuring relatives, destroying property, leaking privacy, damaging reputation, dismissing one's job, withholding wages, and dismissing one's job. As for other unfair means, it refers to unfair means such as robbery, theft, and fraud. Except for theft, inducement and coercion mentioned above. 2. Disclose, use or allow others to use the right holder’s business secrets obtained through unfair means. The so-called leakage refers to leaking business secrets to others through various means. Some adopt verbal notifications, such as face-to-face notifications, telephone notifications, etc.; some adopt written forms, such as providing originals and copies of trade secrets and informing them of their contents in letters; some use it to read, copy, and copy trade secrets. As long as others can know and understand the trade secrets through their own actions, no matter what, they should be punished as leaks. The so-called use refers to using the known trade secrets for production and business activities. Disclosing, using or allowing others to use the right holder's trade secrets must be obtained through theft, inducement, coercion or other unfair means. If it is not obtained by unfair means, even if it is disclosed or used, it cannot be punished as a crime. If you receive trade secret information, or obtain trade secrets by printing trade secrets, participating in decision-making, discussion, consultation, supervision and management, etc., you will not be punished for this behavior even if you disclose, use or allow others to use it. . To constitute this crime, it should fall into the third mode of conduct. It should also be pointed out that the subject of the act should be someone other than a person who obtained trade secrets through theft, inducement, coercion or other improper means, otherwise it should be deemed a case. If someone other than yourself obtains a trade secret by improper means and then informs a third party, if the third party here discloses, uses or allows others to use it knowing that it was obtained by improper means, it can be said to be a kind of Behavior.
Allowing others to use others, if the others do not know that they obtained it through unfair means, cannot be regarded as such behavior. If you know it, you should be punished as using this behavior to obtain the trade secrets of the right holder by improper means, which may also constitute this crime. 3. Violate the agreement or the obligee's requirement to keep trade secrets, disclose, use or allow others to use the trade secrets in his possession. If a person other than the person who obtained the trade secret by improper means violates the agreement or the right holder's requirement to keep the trade secret, discloses, uses or allows others to use the trade secret, this constitutes this act. Violation of the agreement or the obligee's requirement to keep business secrets is a prerequisite for this act. If there is no violation of the agreement or the obligee's regulations on keeping trade secrets, but the disclosure, use or allowing others to use the secrets in his possession in accordance with the obligee's agreement and requirements, this behavior cannot be punished. In addition, according to the provisions of paragraph 2 of this article, any person who knowingly or should have knowingly obtained, used or disclosed the trade secrets of others shall also be deemed to have infringed the trade secrets. If this kind of behavior can be summarized into the above three behaviors, it should naturally be punished according to the above behaviors. If you know that others have obtained the trade secret through improper means, and then use or leak the trade secret after being informed by others, it should fall into the second situation and be treated as the second behavior. It cannot be attributed to the above-mentioned behavior, such as the person holding the trade secret breaching the agreement or the right holder requiring the confidentiality of the trade secret and allowing others to use the trade secret. Among them, if others know or should know that the person keeping the secret has violated the agreement or the obligee's requirement to keep the trade secret, but still decides to use it, the secret shall be treated as such. It should also be pointed out that the implementation of this act should also be based on the person knowing or should know that the trade secret was obtained through the above three ways of behavior. Otherwise, this behavior cannot be punished according to this crime. Any act that infringes upon a trade secret and causes heavy losses to the owner of the trade secret constitutes a crime. No loss has been caused to the trade secret obligee or although the loss has been caused, it is not a major loss. does not constitute this crime. The so-called major losses mainly refer to serious damage to business activities; unsalable goods and serious backlogs; serious setbacks to for-profit services; huge economic losses; wait a minute. As for the right holder, it refers to the owner of the trade secret and the users of the trade secret with the permission of the owner. Among them, the right holder refers to the person who has full ownership of the possession, use, income and disposal of the trade secret. If a person only knows a trade secret due to his position, work or other reasons, and does not have full ownership of the possession, use, proceeds, and disposal, he is only an insider and cannot be punished as the owner. Subject elements: The subject of this crime is a general subject. Any natural person who has reached the age of criminal responsibility and has the ability to be responsible can commit this crime, and according to the provisions of Article 220 of this section, an entity can also constitute the subject of this crime. If a unit commits this crime, the person directly in charge and other directly responsible personnel shall be held criminally responsible in accordance with the provisions of this article. In our country, the main elements of the crime of infringement of trade secrets are usually: (1) factory directors, managers and other administrative personnel, employees or temporary employees of the enterprise; (2) personnel who have retired or transferred from the original enterprise; (3) persons who are entrusted and Therefore, people who know and possess trade secrets, such as lawyers, patent agents, economic consultants, etc. ; (4) Personnel who have the power to supervise, inspect, investigate and manage enterprises, such as auditors, tax personnel, administrative agency personnel, industrial and commercial managers, etc. (5) Except for the above four categories of persons who may become the main elements for leaking trade secrets, any other person may become the subject of a crime due to theft, inducement, coercion or other improper means to obtain the right holder’s trade secrets; (6) Relevant units and directly responsible persons who disclose, use or allow others to use the trade secrets in their possession in accordance with the contract or the obligee's requirement to keep trade secrets. In addition, any unit or individual who colludes with criminals who leak trade secrets in order to obtain and use trade secrets shall be treated as an accomplice. Subjective elements The subjective aspect of this crime can only be intentional, that is, the perpetrator consciously infringes on business secrets through various means. Negligence does not constitute this crime. As for the perpetrator's criminal motive, it does not affect the establishment of the crime, but is only a factor that can be considered when sentencing.
In practice, the criminal motives for this crime include: (1) leaking trade secrets in exchange for benefits; (2) using trade secrets to engage in unfair competition; (3) using unfair means such as theft, inducement, and coercion to defeat competitors in the same industry. Obtaining trade secrets by other means; (4) Obtaining trade secrets through theft, inducement, coercion or other unfair means for the purpose of sales; (5) Leaking trade secrets for revenge or venting anger.