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A Study On the Constitutive Elements of the Crime of Infringing Business Secrets in China

  • Journal of International Business Transactions Law
  • Abbr : IBT
  • 2019, (26), pp.75-95
  • DOI : 10.31839/ibt.2019.07.26.75
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law > Private Law > International Commercial Transactions Law
  • Received : June 20, 2019
  • Accepted : July 10, 2019
  • Published : July 31, 2019

吳丹 Wu, Dan 1,  Park Sang Sik 2

1中國景德鎮陶瓷大學講師
2경상대학교

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ABSTRACT

Trade secret is not only a weapon for entrepreneurs to get rich, but also a part of the national wisdom treasure house. As an important support for enterprises to establish their roots in the market and gain competitive advantages, it should become an important property right of the right holders protected by the state. With the increasing competition intensity of trade secret, China formally put it into effect in 1997 because of the urgent need to protect trade secret. Trade secrets are included in the scope of protection of our criminal law. However, since the stipulation, the crime of infringing on commercial secrets has encountered difficulties in both theory and judicial practice. The existence of elements of commercial secrets has also become a hot topic for scholars to discuss with each other, and various theories collide with each other. Based on this background, this paper, through empirical analysis and comparative analysis, analyses the disputes on the constitutive elements of the crime of infringing trade secrets, and puts forward some corresponding suggestions on criminal law protection. The full text is divided into three parts. The first part is an overview of the crime of violating commercial secrets. It mainly introduces the concept, characteristics, history, and current situation of the crime of violating commercial secrets, and puts forward reflections on this crime through discussing the influence of protecting commercial secrets. It lays the theoretical foundation for discussing the constituent elements of the crime of violating trade secret. The second part specifically discusses the problems that arise in practice in the constituent elements of the crime of infringement of commercial secrets. On the basis of the analysis of the four constituent elements of subjective, subject, object, and objective aspects, the author analyzes the controversy of the constituent elements of the crime in the application. The third part corresponds to the second part, and puts forward corresponding suggestions: First, the subjective aspect is identified as intentional; The subject is recognized as a general subject; The object clearly defines the difficult problem of identifying business secrets; Then, the author discusses the rationality of introducing economic espionage by comparing it with the criminal law protection system of the United States, and puts forward some suggestions on the identification mode of major losses.

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