Problems and Countermeasures of the commercial secrets in criminal proceedings

Zhu Miaochun lawyer Zhang Bing lawyer

Note: This article was in 2012 Chinese lawyer practice of Intellectual Property Forum "Ten Best Paper Award", and included in the legal press "intellectual property law practice and legal service skills" in a book.

   

　　Commercial secrets, is not known to the public,Can bring economic benefits to the obligee, is practical, technical information and management information and the right to take security measures. Commercial secret is a kind of high commercial value of property rights, more and more attention by the enterprises. At present there is no a unified "trade secret law", for the protection of commercial secret provisions appear in criminal, civil, administrative and other department law and relevant judicial interpretations, so for the protection of commercial secrets will include criminal relief, the civil relief and the administrative relief three. Compared with the civil and administrative remedies, criminal remedy has considerable advantages in the investigation and evidence collection, disclosure or use contact and other evidence, often used for human rights. But the author insists that should be used with caution in Criminal Law means the protection of commercial secrets. This paper will combine the writer the business secret criminal case, according to the existing problems and Countermeasures about some superficial views.

    Criminal procedure, problems in a commercial secret

(a) subject

The subject of rights and infringement necessarily involves two categories in trade secret litigation. The subject of right is refers to the commercial secret rights or the person who controls, namely in civil proceedings the plaintiff or the victims in criminal proceedings; tort refers to infringement of commercial secrets of the legal person or natural person, namely the defendants in lawsuits or criminal defendant in.

The main problems existing in criminal litigation often confuse business secrets, such cases occurred in several subjects of rights or tort, especially the parent, subsidiaries and Associate Company coexist, the prosecution will often the parent company and the subsidiary company and the parent, subsidiaries and Associate Company pooling, or even the wrong person.

The author present a proxy with the business secret criminal case information is the existence of the above circumstances:

1In this case, the victimAThe company is not the Department for business people the right to secret, nor the Department for business secret user, that is not the case for the victims, because the commercial secrets of the true owner and the user is the subsidiary company of HongkongBCompany, the prosecution willA,BTwo parent, subsidiary of confusion, subjective believes the two are of the same company, theAThe company replacedBCompany as the victim.

2The case involved two enterprises, the defendant, but the two companies are independent legal entities, did not use the information of business, because the two companies did not involve product sales business, it should not be used as a defendant in this case. Step back and say, even if the use of the management information, but the user is not the two corporate defendants, but the two defendants enterprise Associate Company, is located in the main Hongkong salesCCompany. However, the prosecution in HongkongCCompany and the two defendants enterprise actual controller is the same, the three companies is equivalent to a home, thinkCThe behavior of the company that is the two enterprise's behavior, thus identified withCThe company is associated with the two defendant enterprises should take full responsibility.

Thus, the victim or the accused and its affiliated enterprises pooling approach is clearly contrary to the legal independent personality of this basic principle, but also against the take the fact as the basis, take the law as the criterion of judicial principles.

(two) the problem of the object

1The known information, identified as proprietary information.

Determination of commercial secret infringement or whether the crime, the object should first define the information is a trade secret protection, namely, the information is confidential, security, economy and practicality, the secrecy and confidentiality is important. In the lawsuit, the plaintiff or the prosecutor will be known as proprietary information situation It is often seen.

The agents of a product formula case of trade secret, the plaintiff47A product of the formula is the commercial secrets of the company, to the defendant claims million yuan. We found that the retrieval, the majority of products formula has been foreign patent file open, belong to the well-known technology, not in conformity with the secret of business secret, only3A formula can constitute the commercial secret. So, we will post translationally foreign patent documents submitted to the court, the court of final though that the infringement of trade secret, but only the defendant pay one hundred thousand yuan in economic losses of the plaintiff.

2The secret of advocating, too much or too little.

The secret of business secret, refers to the business secret obligee requests to protect with the known information of different, it is the supporting point of rights, but also decide whether the defendant is constituted the control object infringement. In short, the secret is to request the specific content of the protection of trade secrets. The secrets of how point reflects the degree of innovation and technical information, but the procedure, many advocates of secret points will directly relates to the prevailing problems. Secret point right argue, as many as a dozen or even dozens of secret, only one or two points of some human rights advocates, these two approaches are not desirable.

   (1) that secret too much, easy in front of difficulties.

In trade secret litigation, rights or the prosecution must be proof of their secret propositions, and were one by one to say, if the difficulty, secret idea too much will undoubtedly increase litigation will care for this and lose that, appear flaw, will accidentally fall into the mud pool lawsuit, can not extricate themselves.

In a technical trade secret information in the case, the plaintiff the technical secret point too many to count, but during the trial did not clearly explain the specific content of each secret point, leading to the court the passive, eventually had to withdraw. The reason is that the number of secret point too much, beard eyebrows picture, that may be to their advantage all the things listed, the attack surface is too scattered, difficult to form an effective offensive, also easy to opponents away.

   (2) that secret too few, litigation risk.

That secret points too easy to increase the difficulty of litigation, it holds secrets too few will also bring the risk of litigation. If the secret point looking too thin, once was eventually identified as known information or the defendant's technology and the secret bit is not the same, it can only bear the adverse consequences.

Shanghai information of a chip of a criminal case, the victim only provides the chip in the product1Technical information as secret, did not continue to dig the product technical secret. Although the technology of information has also been identification of bodies identified as proprietary information, but by the public security organs will be called the infringing products compared with that of the infringing products, technical information and the secret is not the same, and the difference between the public security organ shall not register, eventually.

(three) the identification problem

 1Appraisal report, as the legal evidences are often a major flaw in.

Because of the trade secrets case relates to the technical information or business information, its relatively strong professional, courts often difficult to make a correct, clear judgement, the court will usually identified with the report's conclusions as the infringer or criminal evidence. But, as the report case basis often have many flaws, especially in criminal cases, if used as a basis for ruling the defendant guilty, it is easy to cause miscarriages of justice, it should be careful to check. The number of induction agent business secret criminal cases, found mainly in the following categories defect:

    (1Identification identification) content beyond the business scope of the organization.

The judicial authentication institutions is the authoritative appraisal organized by the judicial authority and the establishment of the license, "the judicial authentication licenses" are marked with identification of the scope of business. According to the "rules" of Judicial Expertise Procedure Article sixteenth(A)Regulations "the entrusted matters beyond the business scope of judicial authentication of the mechanism, the judicial authentication institution shall not accept", thus appraisal institutions can only engage in judicial authentication business within the approved scope.

The agents of a business secret business information in criminal cases, the prosecution organ provides three appraisal report involved, these reports are issued by a judicial authentication. We found that the mechanism of judicial identification "license" business scope is identified state "limited to information technology and products, technology and product", but the internal information, business information, such as a list of customers, price system, belongs to the field of economics, technology is not, obviously does not belong to the appraisal agency business therefore the identification range, beyond the scope of business to make identification mechanism is obviously invalid.

(2Identification of experts) beyond their professional ability.

"Specified in the first paragraph of article eighteenth" principles of judicial expertise procedure: "the judicial authentication institutions after accepting a commission of authentication, shall designate a judicial authenticator has the authentication qualification the organization were identified." Therefore, experts for each item of identification content are required to select the field identification report, if cross domain experts to make is often beyond the expert professional ability and the lack of accuracy of identification report.

In the same identification information in a management, appraisal agencies of public security organs entrusted specified only two experts, and were senior engineer and patent agent. Obviously, identification of areas of the two experts mainly relates to the technical information and business information, the difference between. As the saying goes "隔行如隔山", which have the expert with technology in the field of chemical and mechanical, so, the technology and economic fields across two "mountain" of experts is even more so. Therefore, from the above two technical experts on the expert opinions issued by the business information is obviously beyond the scope of their professional competence, apparently lost the authority and accuracy of identification.

   (3) issued by the appraisal report too hasty, lack of necessary to the process of argumentation.

Appraisal reports issued should be based on careful verification of expert identification of material, after careful analysis, argumentation, draws the appraisal conclusion logical and convincing. That is to say, the appraisal conclusion needs proved rigorous. But some evaluation report content is often too simple, lacking of illustration and demonstration process, only from identification of material, the packing machinery to carry out the relevant provisions of the law and the principles of the exposition, which directly draws the appraisal conclusion. This is often seen in business appraisal report secret information business, empty and lack of Argumentation Logic is irresponsible, issued identification conclusion certainly is not convincing.

2The contradiction between, often have the appraisal report.

No matter in civil litigation, or in the criminal lawsuit, relates to the identification of report of commercial secrets are often more than one, for the same identification content often report provided by different clients, there are many differences between the appraisal conclusion, even opposite. In civil proceedings, such as the original defendant or criminal proceedings in the control, between the two parties, the appraisal report as well as between administrative, judicial organs often appear afore-mentioned circumstances.

The agent of Tianjin chemist Dr. Chen infringes on business secrets in criminal cases, prosecutors in Beijing commissioned a appraisal institutions according to the production process and the defendant's private knowledge of an identification information, obtains the two have the same conclusion. However, we found that the expert is not the expert in chemical catalysis, and even legal experts and management experts. So, we have commissioned a Shanghai Association for the re identification authentication institution. An authentication institution entrusted Shanghai Association for science and technology, the five experts in the field of chemical catalyst specified, including the president of the National Association of catalyst. After identification, the five experts agree the reagent by acid-base neutralization reaction process in two different, leading to process between the disparity, finally obtains both do not have the appraisal conclusion identity. The evaluation report submitted to the court, the court, the defendant acquitted.

The agent of another business secrets in criminal cases, from the prosecution to the court and relates to five appraisal report. From the identification mechanism of geographical points, Beijing, Shanghai and Wuhan; the client from the identification to the procuratorate, court, and the defendant; the appraisal institution to points, there is association, professional association and the Ministry of science and technology. In the criminal procedure identification game, full of contradictions.

3, identification of business information.

In recent years, more and more business information relates to the business secret cases, a lot of business information are identified through the identification mechanism, thus entered the identification error, in fact, technology information needs were identified, and the management information is not needed for identification, the court may make a judgment from the line.

First of all, legal issues, business information mainly related to the concept of simple, one look to understand, said Ming, the judge can directly make a judgment with legal basis and judicial experience, as is the case in judicial practice;

Secondly, information technology professional strong, difficult to understand for non professionals, so we should delegate identification or listen to expert opinion. Such as retrieval information is publicly known technology, analysis of whether can obtain the technical information through reverse engineering method. But business information mainly involves the question of fact, no identification, the parties should be the burden of proof;

Third, appraisal institutions often produces in the technology sector, such as science and technology, science and Technology Association and professional associations, gathered a large number of different areas of technical experts, but the experts in economics lack of business field, so the authentication institutions most on the management information alone does not make identification, just based on technical information on the identification of incidental to business information identification.

  (four) procedures

1The public security organ for bugs.

The public security organs in a trade secret owners report, often only according to the information of non-public baoanren provide knowledge evaluation report on the first case, and arrest the suspect, to search for evidence, evidence and the informant then searched to provide knowledge for an identification of non-public information, thus both is the same. Conclusion. This practice has significant errors in the program, the evidence is not conclusive fully under the condition of the first of the alleged infringer to take compulsory measures, and greatly increase the risk of the case, easy to cause miscarriages of justice. A lot of the principal responsible person of the enterprise or technical personnel by the public security organs of restriction of freedom of person, often leads to the production and operation of enterprises in trouble, even lead to corporate bankruptcy; and for the arrested personnel family, is a major blow, serious will appear. Results.

In civil proceedings, if the defendant to the non-public known appraisal conclusion is not recognized, in the cross examination and objection may also entrust or request the court to entrust the re identification, in order to ascertain the facts. But the evidence requirements more stringent criminal litigation, the public security organ is only on the basis of the informant unilaterally provided without the alleged infringer irrefutable evidence and easily makes the decision of the investigation, and directly to arrest the accused or compulsory measures against infringing enterprise, is too sloppy, error if the public security organs to take compulsory measures, the consequences will be unbearable to contemplate, and easy to be some enterprises malicious use of public power to intervene the economic dispute, unfair competition.

 2The trial procedures, improper

   (1Criminal cases of infringing upon business secret) jurisdiction level below the civil cases.

Infringing trade secret civil dispute case in the first instance, generally by the intermediate court or by the court the court specified with Intellectual Property Tribunal, and the criminal cases of infringing upon commercial secrets trial but often by the grass-roots court case. Visible, the trade secret civil jurisdiction requires a higher level, and lower level jurisdiction of criminal cases of commercial secret, it is in the trial produce contradictory, which requires professional intellectual property is weak, the grass-roots court trial of lower ability to hear professional stronger, higher level of commercial secrets trial of criminal cases, the result is one can imagine.

   (2The members of the collegial panel) lack of professional knowledge.

With the Intellectual Property Tribunal court and grassroots courts in the trial of criminal cases of commercial secret, the collegial panel consists of Criminal Court and the intellectual property court judge, thus formed a professional composite of the collegiate bench. The court without the Intellectual Property Tribunal, the lack of commercial secrets of the professional judge, in the trial of criminal cases of commercial secret, the collegial panel by the criminal court judges, and not from the grass-roots court superior court or other Intellectual Property Tribunal has seconded professional intellectual property judges to participate in the trial, the trial process may result in the lack of commercial secret knowledge generated error or misjudgment, the consequences be unbearable to contemplate.

   (3) conforming to "first the punishment queen people".

At present, in the judicial practice, the criminal cases of infringing upon business secret legal principles and criminal cases of infringement of intellectual property rights are commonly used by "punishment queen people first", namely the criminal procedure that is a crime, and then by the civil litigation to recover losses.

"Apply first the punishment queen people" on the general principles of criminal cases has its superiority, reflects the traditional concept of public priority, and also can reduce the unnecessary litigation procedure, but as the field of commercial secret and other intellectual property rights of criminal cases if the program action adopt "first the punishment queen people" tend to conflict between civil tort and criminal judgment due to judge the different ideas. In the criminal procedure, the causal relationship between qualitative, criminal court judges tend to focus on the defendant's criminal acts against the results and find out criminal behavior and harm result verification, and for the ownership of business secret rights and infringement is established and other important facts is often not enough attention, and direct a verdict of guilty. While the civil litigation in the plaintiff, as evidence in criminal judgment in effect, thus affecting the confirmation of civil infringement is constituted, very easy to produce a wrong decision or cause in the civil judgment and prior criminal judgment conflicting embarrassing results.

(five) the criminal means flooding

Trade secret disputes or disputes over intellectual property rights are enterprise's economic struggle, conflict of interest, market competition, criminal means to protect the lack of humanization, easy cause irreparable consequences. It is reported, in recent years, the intellectual property rights in criminal litigation cases every year to more than30%Speed increase. China has adopted the method of criminal infringement of intellectual property rights is because of entering WTO, foreign enterprises for the protection of intellectual property rights in China and claims of infringement of intellectual property rights Chinese enterprises and individuals to inflict punishment, so as to protect the interests of property.

Intellectual property is an important weight for the enterprise to participate in market competition, although the infringement of intellectual property rights will give people and resulted in economic losses, affecting human rights market competitiveness, but the act does not have the universal social harm, not inflict severe criminal penalties. Of course, the public security organ for normal market competition has the duty to safeguard and maintain, however, should not be too much involved in the enterprise economic disputes, often involved in the enterprise market competition is extremely easy to cause the civil liability of the criminal, not be conducive to resolving the contradictions and disputes.

Two, countermeasures and suggestions

   (a) clarify the subject of litigation

Determine whether the crime of infringing trade secrets, should first check the victim and the defendant is eligible, namely whether the victim to the right of commercial secret real or actual users? Whether the defendant for the actual infringement? Not the victim or the accused and its associated enterprises should be the legal person personality confusion, respectively as the independent, have independent capacity for civil responsibility and criminal responsibility, by its own legal liability. Especially in criminal cases, the strict distinction between each of the defendant's behavior and its consequences is critical, so as to meet the "the criminal law basic principle of suiting punishment".

   (two) a full analysis of the information is a commercial secret, and select the appropriate secret point.

1Analysis of the information, whether the commercial secrets.

Whether in civil proceedings the plaintiff or the prosecutor in criminal proceedings, shall be fully demonstrated the information is a commercial secret. This should start from the characteristics of commercial secrets, one by one, especially the secrecy and confidentiality issues as a priority among priorities. Therefore, rights should be involved in the information of non-public known identification, through expert retrieval that is not known to the public the conclusion. If the information is known to the public in the public security organ, it should not put on record. As a trade secret criminal case, public security organs before the registration should include the rights of people to submit confidential measures evidence. The law does not protect the people sleep lying on the right, the right person should also provide the security measures of the information has been evidence, such as staff signed a confidentiality agreement, take the physical security measures, to prove that the rights of people with sense of confidentiality, and action will be involved in the information as a trade secret is protected. Even if the information is proprietary information, but not the right person to take any security measures, the public security organs should not register.

    2Select the appropriate amount of secret points, proceedings.

    Trade secret litigation, because the selected secret point too much or too little will bring adverse effect to the litigation, and should therefore be selected secret points proper, can effectively guarantee the procedural success. In the secret many situation, should be selected3-5An important secret point representative, as the main direction, give each other the most powerful blow. In the secret point less situations, should dig2-3A secret, in order to guarantee the procedural success rate.

   (three) choose the authentication institution qualification and expert appraisal.

    In criminal litigation, commercial secret, identification of the report's conclusions directly determines whether the defendant is guilty or crime and light crime, it should have appraisal agencies and expert appraisal opinions issued by the. On the one hand, for the prosecution organ concerned shall entrust the authority of experts qualified institutions and the field by expert opinion; on the other hand, for the identification of institutions should carry out business in strict accordance with the permission range, can only identify opinions issued by the professional field for the identification of experts. Only guarantee as appraisal report legal evidences has the authority, impartiality and accuracy, to do justly, and to combat crime.

   (four) perfect the criminal case and trial procedure

   1The criminal should be based on human rights, non-public known identification and identity identification is the prerequisite.

Irreparable damage to avoid, for trade secret criminal case filing and investigation procedures should be strictly regulated. In the trade secret owner to the public security organs, should be required to provide the information of non-public known identification and identity identification report, not only that the information is proprietary information, but also that of the infringement of information and the non-public information with the same sex. On this basis, the public security organ shall be placed on file. In this way, can effectively prevent the registration error due to take compulsory measures, adverse consequences for the alleged infringer and enterprise to bring the crowning calamity. Otherwise, the public security organ may also run the risk, once the error, will inevitably produce state compensation, a bad influence in society. At present, the Shanghai public security organs require commercial secret informant must also provide non-public known identification and identity identification of two reports in the report, after rigorous review to meet the requirements to file.

   2"Our ancestors, should take the punishment" trial procedure, and improve the level of criminal litigation jurisdiction.

   (1"Our ancestors) take punishment" procedure.

The business secret crime is different from general crime, its constitution to civil tort as the premise, only a civil tort and to owners of large losses to constitute a crime, the trial procedures should be overthrown the original "punishment queen people first" principle of the trial, and the use of "ancient punishment" principle, firstly, by the civil procedure to determine whether tort, standards and then according to the right people whether economic loss to crime into the criminal procedure.

   (2) improve the jurisdiction level, improve the collegiate panel.

The rating jurisdiction of criminal cases of commercial secrets shall be unified and civil cases of intellectual property right, the court shall generally intermediate people's court or the establishment of the Intellectual Property Tribunal, so as to improve the hearing level hearing cases, accurate. At the same time, considering the particularity of business secret cases, by the intellectual property court and Criminal Court formed a collegial panel to examine the comprehensive factors, civil tort and criminal two aspects, so as to ensure the veracity of judgement, but also can avoid the contradiction between the civil judgment and criminal verdict.

 Zhang BingThe lawyer / patent agentMobile phone: 15900658346QQ:343779725