Crime of intentionally revealing state secrets
I. Concept
The crime of intentionally revealing state secrets (Article 398 of the Criminal Law) refers to a serious act of state functionaries who intentionally reveal state secrets in violation of the provisions of the State Secrecy Law.
Second, the composition of the crime
(A) the object elements
The object of this crime is the state secrecy system and state secrets, which are related to national security and interests. It is determined in accordance with the procedures prescribed by law and is only known to a certain range of people in a certain period of time. Keeping state secrets is the obligation of all state organs, armed forces, political parties, religious groups, enterprises and institutions and every citizen to the country. It is an important work to safeguard national security and interests, and to defend and promote the development of etiquette construction. Any act of revealing state secrets will cause serious harm to national security and people's interests. Therefore, we must insist on all acts of revealing state secrets to fight.
The object of this crime is state secret. State secrets, according to Article 8 of the Law on Guarding State Secrets, mainly include: (1) secret matters in major decisions on state affairs; (2) Secret matters in national defense construction and activities of the armed forces; (3) Secret matters in diplomatic and foreign affairs activities and matters with confidentiality obligations; (4) Secret matters in national economic and social development; (five) scientific and technological secrets; (six) activities to safeguard national security and trace the secrets of criminal offences; (seven) other state secrets that should be kept secret as determined by the state secrecy department. In addition, the secrets of political parties are also state secrets if they conform to the nature of state secrets. The specific scope of confidentiality shall be determined by all organs and units in accordance with the above provisions, and shall be divided according to the classification as stipulated in Article 9 of this Law.
According to Article 9 of the Law on Guarding State Secrets, state secrets are classified into three levels: top secret, secret and secret. "Top secret" is the most important state secret, and its disclosure will cause particularly serious damage to national security and interests; Confidentiality is an important state secret, the disclosure of which will cause serious damage to national security and interests. "Secret" is a general state secret, the disclosure of which will cause harm to national security and interests. As the object of this crime, as long as it is a state secret.
(b) objective factors
Objectively speaking, the perpetrator of this crime must have a serious act of deliberately revealing state secrets in violation of the provisions of the Law on Guarding State Secrets. The so-called State Secrets Law mainly includes the Law of People's Republic of China (PRC) on Guarding State Secrets, which was passed by the National People's Congress Standing Committee (NPCSC) on September 5th, 1988, and the Law of People's Republic of China (PRC) on Guarding State Secrets, which was promulgated and implemented on May 25th, 1989. The specific implementation provisions of the State Secrecy Law are the confidentiality scope, confidentiality system and responsibilities stipulated by the relevant state organs according to the State Secrecy Law, as well as the specific confidentiality provisions required by the actual situation of the departments and units. Violation of these specific implementation provisions will inevitably violate the confidentiality laws and regulations, so it is considered to be a violation of the state secrecy law in trial practice.
The so-called disclosure means that the actor lets people who should not know know know the state secrets he is in charge of or knows. There are many ways to make it public, either orally or in writing. It can be made public in kind, or by means of steganography, photocopying, photographing and copying. The different ways of disclosure do not affect the establishment of the crime of revealing family secrets. However, if the enemy or others obtain the secret by means of theft, reconnaissance, deciphering, telemetry, etc. , causing leaks, and I have not violated the provisions of the secrecy law, which does not belong to the crime of leaking state secrets, and the person in charge or the person in charge of secrets or other relevant personnel cannot be held accountable for leaking secrets.
According to this article, revealing state secrets must be serious to constitute a crime. According to the Supreme People's Procuratorate19/6, 1999, the Standard Provisions on the Filing of Cases Directly Accepted by People's Procuratorates (for Trial Implementation), any functionary of a state organ who is suspected of intentionally revealing state secrets shall file a case under any of the following circumstances:
(1) disclosing top secret or confidential state secrets;
(2) divulging more than three secret-level state secrets;
(3) Disseminating or disseminating state secrets to the public;
(4) divulging state secrets and causing serious harmful consequences;
(five) using their powers to instigate or force others to disclose state secrets in violation of the provisions of the State Secrecy Law;
(6) divulging state secrets for personal gain;
(7) Other serious circumstances.
The standards for filing criminal acts of non-state functionaries suspected of intentionally revealing state secrets shall be implemented with reference to the above standards.
(3) Main elements
The subject of this crime is usually a special subject, and only the staff of state organs can constitute this crime, because usually only the staff of state organs can master and understand state secrets, and non-state organs can also constitute this crime, but it is not a crime of dereliction of duty in nature. For the sake of convenience, this law has unified provisions on conviction and punishment in its provisions.
(4) Subjective factors
Subjectively, this crime is intentional, and negligence cannot constitute this crime. Their motives are varied, such as showing off to show that they are well informed; Sell it for personal gain; Because of lust for women or because of feelings; Threats and inducements, etc.
Third, identify
(A) the difference between crime and non-crime
To constitute this crime, it is necessary not only to reveal state secrets, but also to reach a serious degree. If the circumstances are not serious, even if there is a leak, it is impossible to be punished for this crime. Whether the circumstances are serious or not, we should comprehensively judge the degree of confidentiality, the number of leaks, the time, the consequences, the purpose, the motivation, and the behavior and attitude of the actor after the leak. According to Article 30 of the Measures for the Implementation of the Law on Guarding State Secrets, divulging state secrets is not serious enough for criminal punishment. In any of the following circumstances, a heavier administrative sanction shall be given: (1) divulging state secrets causes harmful consequences; (2) divulging state secrets for personal gain; (three) leaking state secrets, which is not harmful, but has a large number of times or a large number; (four) the use of authority to force others to violate the confidentiality provisions; Wait a minute. Article 37 stipulates that those who disclose state secrets, if the circumstances are minor, may be exempted from or given a lighter administrative punishment as appropriate; Those who divulge state secrets, if the circumstances are minor, may be given a lighter or exempted from administrative sanctions as appropriate; Disclosing top secret state secrets, if the circumstances are minor, may be given a lighter administrative sanction as appropriate. In this way, whether the circumstances are serious or not can be determined according to the above criteria. The disclosure of state secrets has serious consequences; A large number of state secrets were leaked by advanced means; If it is harmful to disclose state secrets for many times, it can be determined that the circumstances that constitute this crime are serious and punished as this crime.
(2) If the actor illegally obtains state secrets and intentionally divulges them, he shall be punished for several crimes, and one of them shall be given a heavier punishment. Because illegally obtaining state secrets is an act of crime, it doesn't have to be serious. Therefore, the crime of illegally obtaining state secrets should be severely punished.
(3) Distinguish this crime from the crime of stealing, spying, buying or illegally providing state secrets or information for overseas.
(1) The targets of crimes are different. This crime violates the state secret system, and the latter crime is a crime of endangering state security.
(2) The targets of crimes are different. The latter serves overseas institutions, organizations and personnel, which has a strong political significance. The object of the crime of revealing state secrets is "people who should not know", which is not limited to overseas institutions, organizations and personnel.
(4) Distinguish this crime from the crime of intentionally revealing military secrets.
The crime of intentionally revealing military secrets refers to a serious act of deliberately revealing state military secrets in violation of laws and regulations on guarding state secrets. The laws and regulations on guarding state secrets mainly refer to the provisions on guarding state military secrets in the Law on Guarding State Secrets. Regulations of the People's Liberation Army of China on Guarding State Military Secrets issued by the Central Military Commission in June 1978, and Provisions on the Secrecy of National Defense Advanced Technology issued by the National Defense Science and Technology Commission in June 1980, etc. Only acts that violate these laws and regulations may constitute the crime of revealing state military secrets.
The main difference between the crime of intentionally revealing military secrets and this crime lies in:
(1) The subject of the crime is different. The subject of the crime of intentionally revealing military secrets is limited to soldiers, while the subject of the crime of revealing state secrets includes all responsible natural persons.
(2) The targets of crimes are different. The object of the crime of intentionally revealing military secrets is the national defense security and military interests of the country, which is the main difference between this crime and the crime of intentionally revealing state secrets.
(3) The objective aspects of crime are different. The crime of intentionally revealing military secrets occurred in wartime, and the law clearly stipulated the independent statutory punishment, which increased the sentencing range. In the crime of revealing state secrets, wartime can only be used as a factor to measure whether the circumstances are serious or not.
Soldiers who reveal military secrets shall be punished as the crime of intentionally revealing military secrets as stipulated in the special law. It is still a crime for non-military personnel to disclose military secrets, which constitutes a crime, not a crime.
Fourth, punishment.
Whoever commits this crime shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; If the circumstances are especially serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years.
State functionaries who commit this crime shall be punished as appropriate in accordance with the above provisions.
V. Legal and judicial interpretation
[Criminal Law Provisions]
Article 398 Any functionary of a pro-state organ who intentionally or negligently divulges state secrets in violation of the provisions of the Law on Guarding State Secrets, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; If the circumstances are especially serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. Non-state employees who commit the crimes mentioned in the preceding paragraph shall be punished as appropriate in accordance with the provisions of the preceding paragraph.
[Relevant laws and decisions]
Article 31 of the Law on Guarding State Secrets violates the provisions of this Law and intentionally or negligently divulges state secrets. If the circumstances are serious, criminal responsibility shall be investigated in accordance with the provisions of Article 186 of the Criminal Law. Whoever, in violation of the provisions of this law, divulges state secrets, but not serious enough for criminal punishment, may be given administrative sanctions as appropriate.
Paragraph 1 of Article 20 of the Patent Law Where a China entity or individual applies for a patent for an invention-creation made in China to a foreign country, it shall first file an application with the patent administration department of the State Council, entrust its designated patent agency to handle it, and abide by the provisions of Article 4 of this Law.
Article 64 Whoever, in violation of the provisions of Article 20 of this Law, applies for a patent in a foreign country and divulges state secrets shall be given administrative sanctions by his unit or the competent authority at a higher level; If a crime is constituted, criminal responsibility shall be investigated according to law.
Decision of NPC Standing Committee on Maintaining Internet Security
(2000. 12.28)
Two, in order to maintain national security and social stability, one of the following acts, which constitutes a crime, shall be investigated for criminal responsibility in accordance with the relevant provisions of the criminal law:
(2) Stealing or disclosing state secrets, intelligence or military secrets through the Internet;
[Judicial interpretation]
The Supreme People's Procuratorate's Provisions on the Standard of Directly Accepting Investigation Cases by People's Procuratorates (Trial) (1999.9.9 Gao Jian Fa Shi Zi [1999] No.2).
Second, port crimes.
(3) Deliberately divulging state secrets (Article 398th)
The crime of intentionally revealing state secrets refers to a serious act of state functionaries or non-state functionaries in violation of the law on guarding state secrets, deliberately making people who should not know know state secrets, or deliberately making state secrets beyond the limited contact scope. State functionaries suspected of intentionally revealing state secrets shall be placed on file under any of the following circumstances:
1. divulging top secret or state secrets;
2. Revealing more than 3 secret-level state secrets;
3. Spreading or spreading state secrets to the public;
4. The disclosure of state secrets causes serious harmful consequences;
5. Violating the provisions of the State Secrecy Law, instigating or forcing others to disclose state secrets by taking advantage of their powers;
6. Revealing state secrets for personal gain;
7. Other serious circumstances.
The standards for filing criminal acts of non-state functionaries suspected of intentionally revealing state secrets shall be implemented with reference to the above standards.
Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Cases of Stealing, Spying, Buying and Illegally Providing State Secrets and Intelligence Abroad (Fa Shi [2000] No.4)
Article 6 Whoever illegally sends state secrets or information to overseas institutions, organizations or individuals through the Internet shall be convicted and punished in accordance with the provisions of Article 111 of the Criminal Law; Whoever publishes state secrets through the Internet, if the circumstances are serious, shall be convicted and punished in accordance with the provisions of Article 398 of the Criminal Law.