What are the legal characteristics that constitute the crime of infringement of trade secrets
(1) Subject of the crime of infringement of trade secrets
The subject of the crime of infringement of trade secrets can be either a natural person or a Legal persons and other organizations.
(1) Senior management personnel, technical personnel, skilled Operators and other employees (including former employees). After an enterprise establishes a trade secret protection system and adopts reasonable confidentiality measures, employees must abide by various regulations on trade secret protection and the requirements or agreements of the trade secret rights holder, and assume confidentiality obligations.
(2) Know the business secrets of the enterprise and have any relationship with the business Legal persons, other organizations, and natural persons with whom the secret right holder has a relationship. The first is the business relationship with the right holder in the process of production and operation and the knowledge of the trade secret, and the right holder requires it to keep it confidential; the second is the lawyers and intermediary agency personnel (accountants, economists, etc.) who know the business secrets due to the entrustment of the trade secret right holder Accountants, auditors, appraisers, etc.); third, staff of state agencies (customs, commodity inspection, taxation, industrial and commercial administration, technical supervision, public security, etc.) who know commercial secrets due to the exercise of administrative powers.
(3) A third party who has committed an infringement of trade secrets. If a third party clearly knows or should know about the illegal acts listed in Article 219 (1), (2), and (3) of the Criminal Law and obtains, uses or discloses the trade secrets of others, he shall be punished for the crime of infringement of trade secrets.
(2) Subjective aspects of the crime of infringement of trade secrets
Subjectively intentional, it constitutes a crime. In terms of civil liability for trade secret infringement, as long as the infringer commits a wrongful act, he will be held liable, regardless of intention or negligence. For the crime of infringement of trade secrets stipulated in the Criminal Law, the infringer subjectively knew or should have known, and the infringement must be intentional. The Criminal Code does not exclude indirect intentionality.
(3) Object of the crime of infringement of trade secrets
The object of the crime of infringement of trade secrets is trade secrets, and trade secrets stipulated in the "Criminal Law" refer to Technical information and business information that is not known to the public, can bring economic benefits to the right holder, is practical and the right holder has taken confidentiality measures.
The object of the crime of infringement of trade secrets is trade secrets In terms of intellectual property rights, if an enterprise has established a trade secret protection system and adopted reasonable confidentiality measures, it can determine the existence of the enterprise's trade secrets. According to the Anti-Unfair Competition Law,According to the relevant provisions of the Criminal Law, trade secrets must have the elements of confidentiality, novelty, value, practicality and confidentiality at the same time.
Confidentiality requires that the rights holder’s information is not available to the public Known. Of course, this kind of confidentiality is relative. It does not require that only the right holder himself knows it before it is known to the public. As for the non-public knowledge of technical information, special appraisal is often required to judge.
The requirement of novelty is related to the requirement of confidentiality , requiring the information to have a certain competitive advantage and not be public information.
Value requires that the information can bring economic benefits to the right holder Benefit. The rights holder in criminal law not only refers to the owner of the trade secret, but also includes the users of the trade secret with the permission of the trade secret owner.
Practicality requires that the information can be used in production and business activities , with direct and practical usability.
Confidentiality requires the right holder to establish a set of trade secrets To protect the system, reasonable confidentiality measures are taken. Only if the right holder has a subjective requirement for confidentiality of the information and objectively takes certain confidentiality measures, the information is confidential information. Confidentiality measures include rules and regulations, confidentiality contracts, physical measures, etc.
(4) Objective aspects of the crime of infringement of trade secrets
The objective aspect of the crime of infringement of trade secrets is that the perpetrator has committed an act of infringement of trade secrets.
(1) Obtain the business secrets of the right holder through theft, inducement, coercion or other unfair means. Theft refers to the act of stealing secrets The carrier of the trade secret was obtained by other means. The form of the carrier and whether it is original will not affect the nature of the act, as long as the recorded content of the carrier is a trade secret; inducement means that the actor uses money, material or other benefits as bait. Inducing a person who knows a trade secret to provide a trade secret; coercion means that the perpetrator threatens the right holder or a person with knowledge of the trade secret and his or her relatives, causing them to fear and therefore provide the trade secret; other unfair means are Point out illegal means other than theft, inducement and coercion, such as secret filming, illegal robbery, drunken talk, etc. There are currently more and more means of infringing on business secrets.
(2) Disclose, use or allow others to use to obtain by theft, inducement, coercion or other improper means business secrets. Disclosure refers to the act of a person who illegally obtains a trade secret telling a third party other than the right holder again; use refers to the person who illegally obtains a trade secret using the trade secret in production and business activities. The act of seeking illegal benefits; allowing others to use it refers to the act of a person who has illegally obtained a trade secret again informing a third party other than the right holder of the trade secret and allowing others to use it in production and business activities.
(3) Violate the agreement or the obligee’s requirement to keep business secrets, Disclose, use or allow others to use the trade secrets in their possession. On the one hand, it mainly refers to people who legally know the trade secrets, violate the confidentiality agreement with the right holder, disclose the trade secrets to a third party, or use the trade secrets without authorization In their own production and operation, or allow others to use the trade secrets they know without authorization; on the other hand, they refer to people who legally know the trade secrets. Although they have not signed a confidentiality agreement with the right holder, the right holder has made a confidentiality request. The system Confidentiality regulations have been violated. In this case, people who legally know the trade secrets are still not allowed to disclose, use orAllowing others to use the trade secrets in his possession constitutes a crime under this article.
(4) The third party knew or should have known to If the person who provides the trade secrets commits the above-mentioned illegal acts (1), (2), and (3) and still obtains, uses or discloses other people's trade secrets, he will be punished as infringement of trade secrets under the criminal law.
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