1. How to judge the crime of infringement of commercial secrets
1. Infringement of commercial secrets If it is secret, the sentence shall be based on the circumstances of the crime. The sentencing standards are as follows:
(1). If the circumstances are serious, the sentence shall be fixed-term imprisonment of not more than three years, and concurrently or solely. Penalty;
(2) If the circumstances are particularly serious, the offender shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and shall also be fined.
2. Legal basis: Article 219 of the "Criminal Law of the People's Republic of China" [Crime of Infringement of Trade Secrets]
2. How to calculate losses from infringement of trade secrets
1. The losses suffered by the trade secret right holder due to infringement shall be the basis for conviction and sentencing.
Once a trade secret is leaked, the rights owner's losses are often irreparable. In criminal trials, it is generally believed that this kind of loss should refer to actual losses, and actual losses include both direct losses and the actual benefits that the right holder will inevitably lose. Moreover, the losses caused to the right holder by infringement of trade secrets cannot only be based on the amount. On the basis of focusing on direct factors such as research and development costs, utilization cycle, maturity, market prospects, etc., various related factors, such as competitive advantages, should be comprehensively considered. Loss of status, decline in business reputation, etc.
2. Loss shall be based on the benefits gained by the infringer due to the infringement.
The calculation of this kind of loss is based on the premise that the infringer has not disclosed it to others. If a trade secret is sold to others, the amount of loss shall be the income from the sale plus the buyer's profit after use; if the trade secret is used for production and business activities, the loss shall be the profit gained.Deficit. When calculating the profits obtained by the infringer, the profit cannot be simply based on sales volume, nor can it be calculated by multiplying the total price of the products produced by the average profit rate. Under normal circumstances, it is more appropriate to calculate the profit amount by multiplying the sales volume by the average profit rate.
3. The loss shall be no less than the reasonable usage fee of the trade secret license.
This is a calculation method that presumes the amount of loss based on normal licensing fees, but it does not mean that the infringer has obtained the legal use of the trade secret. right. At the same time, it is worth mentioning that this does not simply equate the value of trade secrets with losses. Trade secrets are intangible property, which are significantly different from tangible property. When an infringer uses a trade secret, it does not exclude the legitimate rights holder from using it. Moreover, in most cases, after the infringer commits illegal acts such as theft to obtain trade secrets, he is discovered and stopped soon after, and the loss caused to the victim is far less than the value of the trade secret itself.
According to the provisions of the "Criminal Law", how to judge the crime of infringement of trade secrets shall be based on the circumstances of the crime. If the circumstances are serious, the sentence shall be fixed-term imprisonment of not more than three years. A fine may be imposed concurrently or solely; if the circumstances are particularly serious, the offender shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years. I hope the above content can be helpful to you. If you have other questions, you can click the button below for consultation, or go to the Legal Savior website to consult a professional lawyer.
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