The filing jurisdiction of cases of infringement of trade secrets is the most important issue. Article 19 of the Criminal Procedure Law stipulates: "The investigation of criminal cases shall be conducted by public security organs, except as otherwise provided by law. Cases of private prosecution are directly accepted by the people's courts. " According to Article 2 10 of the Criminal Procedure Law and relevant judicial interpretations, private prosecution cases I * * * include three categories: the first category is cases that are handled only after being informed according to 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, which is exclusive, that is, whether to prosecute depends entirely on the victim, and the public security organ or the people's procuratorate may not exercise the right of prosecution on its own initiative. The second category is minor criminal cases that the victim has evidence to prove. The Interpretation on Several Issues Concerning the Implementation of the Criminal Procedure Law of People's Republic of China (PRC) issued by the Supreme People's Court in June (hereinafter referred to as the Interpretation of the Criminal Procedure Law) 1998 gives a special explanation on this kind of private prosecution cases, and defines eight situations, including cases of infringement of intellectual property rights stipulated in Section 7 of Chapter III of the Specific Provisions of the Criminal Law (except those that seriously endanger social order and national interests). For these eight cases, "if the victim directly brings a lawsuit to the people's court, the people's court shall accept it according to law." If the evidence is insufficient and the public security organ can accept it, or the defendant may be sentenced to more than three years in prison, it shall be transferred to the public security organ for investigation. "The third category is cases where the victim has evidence to prove that the defendant has violated his personal and property rights and should be investigated for criminal responsibility according to law, and the public security organ or the people's procuratorate will not investigate the criminal responsibility of the defendant. According to the above provisions, the first category of private prosecution cases does not include the crime of infringing trade secrets, but the second and third categories of private prosecution cases may include the crime of infringing trade secrets. Therefore, in our country, the combination of private prosecution and public prosecution is adopted for the crime of infringing trade secrets, and the relationship between them is overlapping. Specifically: (1) Only public prosecution can be instituted for criminal cases that seriously endanger social order and national interests. (2) The defendant may be sentenced to more than three years' imprisonment, and can only initiate public prosecution. (3) In other minor cases (that is, the defendant may be sentenced to fixed-term imprisonment of not more than three years), public prosecution or private prosecution may be instituted. (4) For criminal cases of infringement of trade secrets with insufficient evidence, no matter whether the circumstances are minor or not, public prosecution and private prosecution can be initiated. (5) In cases where the victim has evidence to prove that the defendant should be investigated for criminal responsibility according to law, but the public security organ or the people's procuratorate does not investigate the defendant's criminal responsibility, the victim may file a private prosecution. This is a case of "public prosecution to private prosecution", which is a relief provision for the above situation, so it can also be called relief private prosecution. Visible, only for (3) and (4) two cases, can both private prosecution and public prosecution, the right of private prosecution and public prosecution are parallel and independent, but can only choose one, that is, if the victim chooses private prosecution, then he can't choose public prosecution; If you choose public prosecution, you can no longer choose private prosecution. It should be pointed out that in these two cases, the direct involvement of state public rights is not ruled out, and the right of public prosecution still exists independently. In other words, if the victim does not file a private prosecution and does not require the public security organ to file a case or the people's procuratorate to file a public prosecution, the public security organ and the people's procuratorate can also take the initiative to investigate and prosecute according to 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 the priority to choose, that is, if the victim wants to choose private prosecution, then the right of public prosecution should be automatically ceded. It is worth mentioning that in case (5), the Supreme People's Court Research Office replied to the Higher People's Court of Heilongjiang Province on July 25, 2000: "If the victim has evidence to prove that the defendant has infringed on his personal rights and property rights, he should be investigated for criminal responsibility according to law, and the defendant may be sentenced to more than three years' imprisonment for public prosecution cases, but the public security organ or the people's procuratorate has made a written decision not to investigate, and the victim can directly file a lawsuit with the people's court. The people's court shall accept the case according to the provisions of Item 3 of Article 170 and Article 17 1 of the Criminal Procedure Law: "Obviously, according to this reply, the above situation (5) can only be limited to" the defendant may be sentenced to more than three years in prison ". In my opinion, there are some problems in this reply: First, Article 2 10 of the Criminal Procedure Law and the Supreme People's Court's Interpretation of the Criminal Procedure Law have not made this restriction, and the reply was made by the research office without discussion by the the Supreme People's Court Judicial Committee, which is obviously ultra vires and its legal effect is doubtful. Second, in cases where the defendant may be sentenced to fixed-term imprisonment of less than three years, as mentioned above, the victim can choose to prosecute or prosecute himself. If he chooses public prosecution, he can no longer choose private prosecution. If the victim does not choose to initiate private prosecution in advance, but directly requests to initiate public prosecution, then after the public security organ or the people's procuratorate decides not to pursue criminal responsibility, according to the reply, the victim can no longer exercise the right of private prosecution relief in the fifth case (that is, "public prosecution to private prosecution"). Obviously, this deprives the victims of some cases of their litigation rights without any justifiable reasons. Many scholars are critical of the existing provisions on the prosecution of intellectual property crimes, including the crime of infringing trade secrets. At present, many people agree that the crime of infringing intellectual property rights should be included in the scope of private prosecution crimes, except those with very serious circumstances or serious harm to national interests. The reason is that: in the way of prosecution of crimes against intellectual property rights, most countries implement the principle of combining private prosecution with public prosecution, with private prosecution as the mainstay and public prosecution as the supplement. For example, Germany, Austria, Italy, Thailand, South Korea and so on. This is mainly because the crime of infringing intellectual property rights is firstly a crime of infringing the legitimate rights and interests of the obligee. Therefore, it is up to the victim to decide whether the offender should start the punishment right, and the state generally does not interfere too much. In fact, cases of intellectual property infringement in practice, especially cases of infringement of trade secrets and counterfeit patents, are generally accepted and prosecuted by the victims urging the procuratorial organs. In this case, the crime of infringing intellectual property rights should be included in the scope of private prosecution crime, giving intellectual property rights holders more freedom to choose legal remedies, which is more conducive to the legal protection of intellectual property rights and promoting economic exchanges in modern society. There is also a view that public prosecution should be carried out on criminal cases that seriously endanger social order and national interests, and procuratorial organs should exercise the right to prosecute criminals on behalf of the state to reflect the protection of social interests and national interests by state public power. For ordinary cases of infringement of trade secrets, public prosecution and private prosecution should coexist, that is, in principle, private prosecution should be adopted. However, if it is difficult to obtain the evidence of the infringement of trade secrets by the obligee's own strength, and the existing preliminary evidence can prove the existence of the infringement of trade secrets, it is more beneficial to crack down on criminal acts by using the public power of the state to complete the investigation and collect evidence and prosecute. However, in the author's view, although the above two viewpoints are put on a reasonable theoretical coat, they just look beautiful, divorced from the judicial reality in China and incompatible with reality. Criminal cases of infringing on trade secrets are very concealed, intelligent and complex. Compared with other criminal cases, it is more difficult to obtain evidence. Private prosecutors do not have the power of compulsory investigation, and it is often impossible to extract, fix or properly preserve the evidence by their own strength, which makes it difficult to preserve and fix the evidence. In the case that 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 complete the burden of proof on his own and form a completely complete chain of evidence. Therefore, even if the private prosecutor has a strong desire to investigate the criminal responsibility of the infringer, there is nothing he can do and it is difficult to achieve. He can only watch the infringer escape from the criminal law. In addition, as mentioned above, the reason why commercial secrets need criminal protection is because criminal law can provide a more effective incentive mechanism than civil law, and this "more effective" advantage is mainly manifested in the intervention of public rights, including public security organs to investigate and procuratorial organs to prosecute. From this point of view, if according to the first view, changing the mode of prosecution of the crime of infringing trade secrets to private prosecution will not only violate the purpose of criminal protection of trade secrets, but also make the criminal protection of trade secrets worse than expected, making Article 2 19 of the Criminal Law completely a mere formality and losing its deterrent power. As far as the second viewpoint is concerned, 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 guaranteed at many levels. However, this view ignores the "hidden rules" in reality. After a little empirical investigation, it will be found that the investigators and funds of the economic investigation organs of public security organs in China are very tight, and they can't cope with a large number of various economic crimes, especially criminal cases that are difficult to obtain evidence, expensive and risky, such as infringement of trade secrets. The public security organs are very enthusiastic and often refuse to file a case or delay it. Therefore, for ordinary criminal cases that infringe on business secrets, such a "hidden rule" has been formed in judicial practice: if the victim does not provide "sponsorship" for handling the case, or finds relationships or acquaintances, it is often difficult to file a case. In this case, if, as the second point of view says, the common criminal case of infringement of trade secrets is changed to the prosecution mode of coexistence of private prosecution and public prosecution, although this makes the investigation by the public security organ not the only relief channel that the victim can rely on, and the victim can go beyond public power to help himself, it also makes the investigation by the public security organ a dispensable and unnecessary duty, and the public security organ has more excuses and reasons not to file a case. In fact, according to the author's understanding, the vast majority of victims in criminal cases of trade secrets don't care whether they enjoy the right of private prosecution, but basically want to protect their trade secrets with the help of the compulsory investigation power of public security organs. So it can be said that neither the first view nor the second view will be what the victim expects. The author believes that the current provisions on the mode of prosecution for the crime of infringing business secrets can not only force the public security organs to take the initiative to crack down on serious criminal cases according to their functions and 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 diverted and filtered to a certain extent, reducing the burden on the public security organs, which embodies superb balance art and legislative wisdom and is quite reasonable, so there is no need to make any changes. The above knowledge is Bian Xiao's answer to this question. If readers need legal help, please seek legal advice.
Legal objectivity:
Object Elements The object of this crime is the right of trade secret (the legitimate rights and interests of the holder of trade secret) and the normal and orderly market economic order protected by the state. The object of this crime is trade secret. The so-called trade secrets, according to the provisions of the Anti-Unfair Competition Law and the third paragraph of this article, refer to technical information and commercial information that are not known to the public, can bring economic benefits to the obligee, are practical, and are kept confidential by the obligee. Obviously, the trade secrets referred to in China's laws include technical secrets (technical secrets or product formulas other than related industrial production technologies and patented technologies, which are not independent or holistic, but must be attached to a 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 strategy and business secrets. The so-called "not known to the public" here means that the information cannot be directly obtained from public channels, and the so-called "can bring economic benefits to the obligee and is practical" means that the information has certain economic benefits or competitive advantages. The so-called "the obligee takes confidentiality measures" includes concluding a confidentiality agreement, establishing a confidentiality system and taking other reasonable confidentiality measures. The so-called "obligee" refers to the citizens, legal persons or other organizations that have the ownership or right to use business secrets according to law. The so-called "technical information and business information" includes design procedures, product formulas, production processes, production methods, business decisions, customer lists, source information, production and marketing strategies, bidding, etc. As a kind of intellectual property, trade secret has 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) secrecy, that is, it is not known to the public. Common technologies and business methods that are well known to the public do not belong to the category of trade secrets. This confidentiality of trade secrets is realized by the right holder of trade secrets deliberately taking confidentiality measures. Therefore, judging whether the obligee takes confidentiality measures often becomes one of the key factors to confirm whether it constitutes a trade secret. The confidentiality of such trade secrets is also what distinguishes them from patents. The content of a patent must be open, and the essence of a patent is that the state allows the inventor of advanced technology to have the exclusive right to his invention for a certain period of time. But only if the inventor makes his invention public. The reasons why the trade secret holder does not apply for patent protection are as follows: first, the trade secret holder does not apply for a patent in order to save the patent cost; Second, the owner of trade secrets wants to keep his trade secrets indefinitely (the protection of patents is limited); Third, because trade secrets have not been included in the scope of patent law protection or can not meet the "three characteristics" standards required by patents; Fourth, some trade secrets are still reserved parts of patents. The owner of trade secrets does not want to obtain the exclusive right recognized by the Patent Law, but intends to maintain the actual exclusive right through confidentiality, which is also allowed by law. The patent law does not abolish the right of confidentiality. (2) Property, that is, it has value and use value. Business secrets can bring economic benefits to the obligee, and once leaked, it will cause economic losses to the obligee. No matter how much investment, if the research results do not have this attribute, it does not conform to the concept of trade secrets. From the perspective of economics, this attribute of trade secrets is a kind of knowledge-based goods, which is manifested as property material rights and interests. From a legal point of view, it can be used as a paid transfer of property rights. The obligee of a trade secret has the right to possess, utilize and dispose of the trade secret and obtain profits, and has the right to prevent others from obtaining and utilizing the trade secret without legitimate reasons. (3) Sharing, that is, business secrets may be mastered by many people at the same time. There may be two or more obligees who have independently mastered the same trade secret at the same time, but why have they not (or have not) had a horizontal relationship, so they all think that they are the only obligees of the trade secret. The owner of a trade secret only has the right to dispose of the trade secret he owns, such as applying for a patent first or transferring the trade secret to him, but he can't fight against fair competition. First, he can't stop others from studying and working independently and having the same business secrets. Second, he can't stop others from re-studying the technological process and design trade secrets of the products according to the products he put into the market, which is called "returning to the original design". This sharing of trade secrets is manifested in its transfer, which is only the transfer of the right to use trade secrets, and the ownership cannot be transferred. Because even if the ownership is transferred to the transferee, the technical skills, product formula, technical secrets, business decisions, business experience and other elements that constitute the trade secret will still remain in the memory of the original obligee and will not disappear from the mind with the transfer of the trade secret. Similarly, the legal owner of a trade secret will not directly and completely lose the ownership of the trade secret because it is stolen, but only indirectly and partially lose the right to actually monopolize, utilize, transfer and benefit the trade secret. In short, the shareability of trade secrets makes it impossible to transfer ownership like tangible property. Infringement of trade secrets not only infringes on the legitimate rights and interests of trade secret owners, but also infringes on fair and orderly market order. Objectively speaking, this crime is manifested as an act of violating the laws and regulations of the state against unfair competition, infringing on trade secrets and causing great losses to the holders of trade secrets. According to article 1 of this article, there are three kinds of acts of infringing on trade secrets, namely: 1, obtaining the trade secrets of the obligee by theft, inducement, coercion or other improper means. Among them, theft refers to the act of secretly stealing trade secrets in a way that they think will not be discovered by the owners, users and custodians of trade secrets. Stolen things can be originals, copies, or secret copies of themselves, such as sneak shots and illegal recordings. Lure refers to the lure of high salary, money, material, working conditions, help to solve the hukou, transfer work, employment, study, study abroad and other material or material benefits, or even playing with women, so that associates, custodians, insiders and others who know business secrets can disclose business secrets to them, such as providing originals or photocopies, oral and written information, etc. Coercion refers to threatening and intimidating people who know business secrets by killing people, hurting their bodies, hurting relatives, destroying property, revealing privacy, damaging their reputation, dismissing their posts, deducting wages, and dismissing their jobs. As for other improper means, it refers to robbery, theft, fraud and other improper means. In addition to the above theft, inducement and coercion. 2. Disclosing, using or allowing others to use the business secrets of the obligee obtained by improper means. The so-called disclosure refers to the disclosure of business secrets to others through various means. Some take oral notice, such as face-to-face notice, telephone notice, etc. Some take a written form, such as providing the originals and copies of trade secrets, and informing their contents by letter; Some use it to read, copy and copy trade secrets. As long as others can know and know business secrets through their own actions, they should be punished as leaks anyway. The so-called use refers to the use of known business secrets for production and business activities. Disclosure, use or allowing others to use the business secrets of the obligee must be obtained by theft, inducement, coercion or other improper means. If it is not obtained by improper means, even if it is made public or used, it cannot be punished as this act. If you receive business secret information, or get business secrets because of printing business secrets, participating in decision-making, discussion, consultation, supervision and management, even if you disclose, use or allow others to use them, you can't be punished for this behavior. Constitute this crime, should belong to the third way of behavior. It should also be pointed out that the subject of this behavior should be someone other than stealing, luring, coercing or other improper means to obtain trade secrets, otherwise it should be considered as 1 case. If a person other than himself obtains a trade secret by improper means and then informs a third person, if the third person here discloses, uses or allows others to use it while knowing that it was obtained by improper means, it can be said to be an act. Allowing others to use others, if others don't know that it was obtained by improper means, can't be regarded as this kind of behavior. If you know it, it should also be punished as the commercial secret of the person who uses this behavior to obtain the right by improper means, which can also constitute this crime. 3. To disclose, use or allow others to use the business secrets in their possession in violation of the agreement or the requirements of the obligee to keep the business secrets. It constitutes this act that a person other than the person who obtains the trade secret by improper means discloses, uses or allows others to use the trade secret in violation of the agreement or the obligee's requirements on keeping the trade secret. Violation of the agreement or the obligee's requirement to keep business secrets is the premise of this act. If you don't violate the agreement or the provisions of the obligee on keeping business secrets, but disclose, use or allow others to use the secrets they have according to the conservative agreement and requirements of the obligee, it can't be punished as this behavior. In addition, according to the second paragraph of this article, anyone who knowingly or should knowingly acquire, use or disclose other people's trade secrets shall also be regarded as infringing on trade secrets. This kind of behavior, if it can be summarized into the above three kinds of behaviors, 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 disclose the trade secret after being told by others, it should belong to the second case and be treated as the second act. It cannot be attributed to the above-mentioned acts, such as the person who holds the trade secret violates the agreement or the obligee requests to keep the trade secret and allows others to use the trade secret. Among them, if others know or should know that the person who kept the secret violated the agreement or the obligee's requirements on keeping the business secret, but still decided to use it, it shall be treated as the secret. It should also be pointed out that the implementation of this behavior should also be based on the fact that it knows or should know that the business secret was obtained by the above three ways of behavior. Otherwise, you can't be punished according to this crime because of this behavior. Infringement of trade secrets, causing heavy losses to the holder of trade secrets, constitutes a crime. It has not caused losses to the trade secret obligee or has caused losses, but it is not a major loss. Does not constitute this crime. The so-called heavy losses mainly refer to serious damage to business activities; Causing unsalable goods and a serious backlog; For-profit services suffered serious setbacks; Huge economic losses; Wait a minute. As for the obligee, it refers to the owner of the trade secret and the user of the trade secret with the permission of the owner. Among them, the obligee refers to the person who has full ownership of the possession, use, income and disposal of trade secrets. If the person who only knows the business secret because of his position, work or other reasons does not own all the ownership of possession, use, income and disposal, it only belongs to the insider and cannot be punished as the owner. Subject Elements The subject of this crime is the general subject. Any natural person who has reached the age of criminal responsibility and has the ability to be responsible can constitute this crime, and according to the provisions of Article 220 of this section, a unit can also constitute the subject of this crime. If a unit commits this crime, the directly responsible person in charge and other directly responsible personnel shall be investigated for criminal responsibility in accordance with the provisions of this article. In our country, the main elements of the crime of infringing on trade secrets are usually: (1) factory directors, managers and other administrative personnel, employees or temporary employees of enterprises; (two) the original enterprise retired and transferred personnel; (3) people who are entrusted and therefore know and master business secrets, such as lawyers, patent agents, economic consultants, etc. ; (four) personnel who have the power to supervise, inspect, investigate and manage the enterprise, such as auditors, tax officials, administrative authorities, industrial and commercial managers, etc. ; (5) Except for the above-mentioned four categories of personnel who may become the main elements because of leaking business secrets, any other personnel who obtain the business secrets of the obligee by theft, inducement, coercion or other improper means may become the subject of crime; (six) in accordance with the contract or the requirements of the obligee to keep business secrets, the relevant units and persons directly responsible for disclosing, using or allowing others to use the business secrets they have. In addition, if a unit or individual colludes with criminals who disclose business secrets in order to obtain and use business secrets, it shall be treated as an accomplice. Subjective elements The subjective aspect of this crime can only be intentional, that is, the actor 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 this crime, but only the circumstances that can be considered when sentencing. In practice, the criminal motives of this crime are: (1) revealing business secrets in exchange for benefits; (2) Engaging in unfair competition by using trade secrets; (three) in order to defeat competitors in the same industry, to obtain business secrets by theft, inducement, coercion and other improper means; (4) Obtaining business secrets by theft, inducement, coercion or other improper means for the purpose of sales; (5) Revealing business secrets for revenge or venting anger.