As we all know, trade secrets are the property rights of enterprises, which are related to the competitiveness of enterprises, vital to the development of enterprises, and some even directly affect the survival of enterprises. Infringement of an enterprise's trade secret constitutes a civil tort and, in serious cases, a criminal offense. This paper analyzes the criminal responsibility of infringing trade secrets.

1. Constitutive elements of crime

The crime of infringing on trade secrets refers to the act of obtaining the trade secrets of the right holder by theft, inducement, coercion or other improper means, or illegally disclosing, using or allowing others to use the trade secrets they have mastered or obtained, causing heavy losses to the right holder of the trade secrets.

(1) Main elements

A natural person or unit who has reached the age of 16 and has the capacity for criminal responsibility.

(2) Subjective requirements

The perpetrator needs to have subjective intention, and negligence does not constitute a crime.

(3) Object elements

The right to trade secrets and the normal and orderly market economic order protected by the state.

(4) Objective elements

1. Objective acts: (1) Obtaining the business secrets of the right holder by theft, inducement, coercion or other improper means; (2) disclosing, using or allowing others to use the business secrets of the right holder obtained by means mentioned in the preceding paragraph; (3) disclosing, using or allowing others to use the trade secret in violation of the agreement or the right holder's requirements for keeping the trade secret; (4) Obtaining, using or disclosing the trade secrets of others, knowing or should have known the preceding acts.

2. Object of conduct: the trade secret of the right holder (the right holder includes the owner and the legal user)

3. Consequences of actions: cause significant losses to the trade secret right holder

2. Criminal filing standards

Under any of the following circumstances, a criminal case shall be filed and prosecuted:

1. Causing losses of more than 500,000 yuan to the right holder of the trade secret;

2. The amount of illegal income from the infringement of trade secrets is more than 500,000 yuan;

(3) causing the bankruptcy of the right holder of the trade secret;

(4) Other circumstances that cause heavy losses to the owner of the right to trade secrets.

3. Sentencing standards for criminal punishment

The statutory sentencing standards for the crime of infringing trade secrets are as follows:

(1) Whoever causes heavy losses shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also, or shall only, be fined.

Major losses are those that cause losses of more than 500,000 yuan and less than 2.5 million yuan to the right holder of the trade secret.

(2) If especially serious consequences are caused, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.

Especially serious consequences for the trade secret right holder caused losses of more than 2.5 million yuan.

(3) If a unit commits a crime, it shall be fined, and the persons directly in charge and other persons directly responsible for the crime shall be punished according to their individual crimes.

The major loss of unit crime is more than 1.5 million yuan and less than 7.5 million yuan, and the especially serious consequences are more than 7.5 million yuan.

Iv. Loss determination method

The loss of the crime of infringing trade secrets only includes material loss, excluding non-material loss. At present, the methods of identifying loss are mainly as follows:

1. The direct calculation of loss method refers to the profit lost by the right holder during the period of infringement, which is generally determined by comparing the same period in the past.

2. The Tortfeasor's profit method refers to the profit obtained by the tortfeasor due to the infringement, and the profit is the sales revenue minus the cost of sales.

3. Costing method refers to the determination of losses through the cost of research and development, production and protection of trade secrets invested by the right holder.

4. Royalty law refers to the price at which the right holder licenses or transfers the trade secret to a third party.

V. Relevant laws and regulations

1. Criminal Law of the People's Republic of China

Article 219 Whoever commits any of the following acts of infringing on a trade secret, thus causing heavy losses to the owner of the right of the trade secret, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined; If especially serious consequences are caused, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined:

(1) Obtaining the business secrets of the right holder by theft, inducement, coercion or other improper means;

(2) disclosing, using or allowing others to use the trade secrets of the right holder obtained by means referred to in the preceding paragraph;

(3) disclosing, using or allowing others to use the trade secret they have mastered in violation of the agreement or the obligee's requirements for keeping the trade secret.

Whoever obtains, uses or discloses another person's trade secret with full knowledge or should have known the acts listed in the preceding paragraph shall be deemed as infringing on trade secret.

The term "trade secret" as used in this Article refers to the technical information and business information which is not known to the public, can bring economic benefits to the right holder, is practical and has been kept confidential by the right holder.

The term "right holder" as mentioned in this Article refers to the owner of the trade secret and the user of the trade secret authorized by the owner.

2. Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on Standards for Filing and Prosecuting Criminal Cases under the Jurisdiction of Public Security Organs (II)

Article 73 The following provisions are made on the standards for filing and prosecuting cases of infringement of trade secrets; (1) causing losses of more than 500,000 yuan to the right holder of the trade secret; (2) The amount of illegal income from the infringement of trade secrets is more than 500,000 yuan; (3) causing the bankruptcy of the right holder of the trade secret; (4) Other circumstances that cause heavy losses to the right holder of the trade secret.

3. Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Intellectual Property Infringement

Article 7 Whoever commits one of the acts prescribed in Article 219 of the Criminal Law and causes losses of more than 500,000 yuan to the right holder of a trade secret shall be deemed to have "caused heavy losses to the right holder" and shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention for the crime of infringing on a trade secret and shall also, or shall only, be fined.

If the amount of loss caused to the right holder of the trade secret is more than 2.5 million yuan, it shall be "causing particularly serious consequences" as provided for in Article 219 of the Criminal Law, and shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years for the crime of infringing on the trade secret, and shall also be fined.

Article 15 A unit that commits an act prescribed in Articles 213 to 219 of the Criminal Law shall be convicted and sentenced in accordance with three times the standards for conviction and sentencing of the corresponding individual crime as provided for in this Interpretation.