On the criminal law on the practicality of the business secrets

    Since a commodity economy in human history, there is a commercial secret. "Secret" is the commercial secrets of ancient, until today still exist in some special fields. In the commercial secrets in the historical development, experienced a commercial secret stage static (commercial secret is the owner of the use of, and not as trading objects), commercial secret stage dynamic (commercial secrets not only by the owners use, but the commercial secrets itself began to be used as the transaction object transfer or allow other operators use) and patent system each other commercial secret stage supplement, development basically and the commodity economy is synchronous.[1]

   As the present commercial secrets of the legal terminology, the definition and constitutive requirements, rules in different countries, regions and international treaties are not the same.

China's Taiwan region "business secret law" amendment in 1996 review of the provisions of article second, a legitimate business secrets should meet the following requirements: (1) non generally involves the information known; (2) and with the actual or potential economic value because of its secrecy; (3) all one has to take reasonable measures to keep the. The constitution as a secret, value and confidentiality. Japan in 1990 revised "Anti Unfair Competition Law" article first paragraph third, the definition of business secret: refers to the secret management, production method, as everyone knows no sales and other business activities of the practical technical or business all. Its constitutive requirements for confidentiality, privacy and utility. South Korea's "Anti Unfair Competition Law" provisions in chapter second, business secret refers to the method of sale method, production and other useful for business activities, is not an independent economic value and the substantial efforts to keep it secret technical or business information known to the public. The constitution as a practical, secrecy, value and confidentiality. America in 1978 under the "Uniform Trade Secrets Act", "trade secret formula, including drawings, plans, structure, method, technique or procedure information", and requested the information must meet the following conditions: "(1) is independent of the actual or potential economic value, not widely known, cannot be according to its disclosure or use other people have economic value in an appropriate way to identify; (2) the information is maintained in all cases the secret is justifiable." The constitution as a value, privacy, confidentiality and legitimacy. The World Trade Organization "agreement on trade related intellectual property rights" (TRIPS) in the thirty-ninth article, on "undisclosed information", defined as commercial secret, as: (a) is secret, as a whole or on the precise configuration and assembly of its components, it is not usually treatment of the relevant information within the scope of the people generally know, or is not easy to them; (b) has commercial value because it is secret; and (c) by the information of the legitimate control, take reasonable measures in this case to keep it secret. Its about the constituents of commercial secrets can be summarized as secrecy, value and confidentiality.

   Therefore, different countries, laws and international treaties, trade secret is different. One of the biggest difference is whether the utility is one of the constituent elements of business secret.

   The business secret is a legal term first appeared in China in the 1991 revision of the "Civil Procedure Law", the law 120th stipulation, "commercial secret" cases, the parties do not apply for an open trial, can not be heard in public. In July 14, 1992 the Supreme People's court "some issues concerning the application of" the PRC Civil Procedure Law > opinions "on the extension of commercial secrets are explained," refers to the procedure law article sixty-sixth, article 120th civil commercial secret refers to the technological secrets, business intelligence and information, such as commercial secret formula, production technology, trade ties purchase and sales channels, if the parties are unwilling to open." The NPC Standing Committee in September 2, 1993 adopted the "PRC Anti Unfair Competition Law", the definition of trade secret is: not for the technology of information known by the public, can bring economic benefits to the obligee, is practical and the right to take security measures and business information. The criminal law of 1997, adding the crime of infringing trade secrets, and the provisions of the definition of trade secret, the definition of the same definition and the "Anti Unfair Competition Law". From the definition of China's law on trade secrets, the constitution as: secrecy, value, practicality and security, practicality is one of the constituent elements of business secret.

   So, what is the "practical"? The State Administration for Industry and Commerce in November 23, 1995 promulgated the "on the prohibition of business secrets infringement provisions" of second points, as mentioned in the present provisions can bring economic benefits for the right people, practical, refers to the information with certain applications, can bring practical or potential economic benefits or competitive advantage for the right people. In 2007 the Supreme People's court "on the trial of civil cases involving unfair competition law application issues of interpretation" provisions of article tenth, the relevant information has actual or potential commercial value, can bring the competitive advantage for the human right, should be identified as the Anti Unfair Competition Act tenth provisions of the third paragraph of "can bring benefits to the obligee, people with practical". In addition to the state administrative organs and the judicial interpretation of the provisions of the Supreme People's court, scholars of the commercial secrets of the "practical" also has its own understanding. Some people think that, the secret of business practicality, means that the information is complete, and can be identified, and can be used in the production and operation, can be implemented, namely the commercial secret is not a simple general knowledge, experience or ideas, but a specific implementation technology or management plan[II]. Also somebody thinks, the secret of business practicality, is refers to the commercial secret have certain applications, is able to actually use, operation information, and can be used to solve the actual production, management problems.[3]Some people believe that, the secret of business practicality, is refers to the commercial secret objective usefulness, namely through the use of commercial secrets can create economic value for all people. The utility of commercial secrets must be specific, the law does not protect the simple conception, general principle and abstract concepts, otherwise it will interfere with another business opportunity. The utility of commercial secrets must be identified, must be able to determine the specific content of the commercial secrets and to draw a line, not is uncertain and cause no protection[4]. The above provisions and the understanding of practical what is commercial secret is not the same, but in general, it is believed that as long as the relevant information can be applied, it accords with the practical requirements of commercial secrets. This is to make a more broad and understanding of business secret utility.

   In particular, China is only from the two aspects of administrative and civil utility of commercial secret for the rules, criminal legislation or judicial interpretation, and there is no provision to practical business secret. Understanding of the business secret practical, provisions are mostly from the national administrative and civil aspects, at least not criminal legislation or judicial interpretation as the basis.

   The next question is: the administrative and civil aspects of business secret practical regulations, as well as academics theory, is of course more suitable in the field of crime? In the criminal law, practical business secret should be how to define?

   Just as some scholars said, because the spirit of legislation and interpretation of the principle of different, in different law fields, the concept of commercial secrets and elements are not exactly the same, the scope of business secrets in criminal law should be far less than the scope of business secrets in the intellectual property law. Because the criminal law by the legal principle, purpose is to strictly limit the penalty power to protect human rights, because of the restriction of principle, the four elements of the provisions of the criminal law and the type of information can only explain strictly, do not allow the analogy to explain, strictly limit the expansion explanation, but are not allowed in without law provisions of conviction and sentencing, is the implementation of the formal rationality principle; and the legislative purpose of intellectual property law is from the essence of fair and reasonable to protect the legitimate rights and interests of the parties, and no statutory restrictions, can be used to explain the principles and methods of very loose, can be freely expanded explanation, analogy interpretation, but also in the absence of express provisions when the legal loopholes, can be interpreted according to the habit or organized even in no law also, as long as the interpretation conclusion essentially fair and reasonable on the line. Therefore, although the same provisions of four elements, but because of differences in the spirit of legislation and to explain the principle, in the intellectual property law can constitute a trade secret information, in the criminal law is not necessarily[⑤]. This paper applies the constituents of commercial secrets in the field of civil and criminal fields, also applies to the field in the administrative areas of difference and criminal. As for the scholars theoretical explanation, of course, can not be directly into the criminal trial basis, this will not repeat them.

   In addition, the spirit of legislation and interpretation of the principle of different I think, because of the double commercial secret protection effect of development to social, economic, criminal law on trade secrets to practical limits, should also define the civil and administrative fields than the more stringent. The protection of commercial secrets is a double-edged sword. On the one hand, the protection of commercial secret, enthusiasm is conducive to the protection of trade secret rights and human development, innovation, promoting social, economic development; on the other hand, the over protection of commercial secret, will limit the reasonable competition to a certain extent, but hindered the healthy development of social, economy. In order to protect the commercial secrets and encourage fair competition to achieve a reasonable balance, achieve the optimization of the social and economic development, countries in the legislation of intellectual property rights, especially in the criminal legislation of intellectual property rights, are cautious about the legislation, especially the commercial secrets. Generally speaking, intellectual property rights, especially the protection of commercial secrets and disputes, should mainly rely on the civil law to adjust, solve, only those serious acts of infringement of trade secret, only can be solved by the criminal law. Look from this meaning, constitutive elements of trade secret law, must be much more stringent than other areas of constitutive elements of civil. Otherwise, it will appear in the protection of business secrets in the name of fighting competition situation, even appears in the protection of business secrets in the name of protection against unfair competition case.

   Therefore, in the criminal law on trade secrets to practical limits, in addition to the requirements of technical or business information involved with certain applications, the author thinks, should also requires that the information should be related to the production or operation of core or key.

   A vague concept of course is not practical, but the specific drawings or specifications do not necessarily practical. In production, the practicability is closely connected with production purposes. As a specification or drawings to organize the implementation of production, cannot produce the target product, then this specification or drawings is not practical. For example, a production of chemical products company production of target products is three phosphorus oxychloride 7N level, its production process is high pure yellow as the main raw materials of patent technology. And the production of high purity phosphorus did not use the patent technology. Different chemical plant, different technical personnel will be to produce high-purity yellow phosphorus by different process. The core technology of the company produced high pure yellow phosphorus is a special solution formula. For ordinary chemical or chemical plant, as long as there is this formula, a little research and test can produce high purity yellow phosphorus; without this formula, even the company's high pure yellow phosphorus production line copy, also not pure yellow phosphorus production. Therefore, the production of high purity phosphorus operating procedures and equipment layout, because it contains no the special solution formula, on production of high purity phosphorus is not sufficient conditions, nor a necessary condition for the use of these techniques of information, not the special solution formula of these technical information on production of high purity phosphorus has no meaning, so do not the practical meaning of the criminal law, therefore, the technical information should not belong to the business secret criminal law. Conversely, if someone told the special solution formula, the formula is related to the production of core technology and key technology, the formula has criminal business secret practicality, it may belong to the business secret criminal law.

   With the continuous development of China's socialist market economy, the improvement of enterprise innovation ability to continuously improve the technical personnel, lateral flow continues to increase, if the business secret right to civil, administrative and field is more strict than the definition of national legislation and judicial interpretation, many normal competition behavior may be small careless suspicion make the commercial secrets, will not only hinder the development of the productive forces, also violated the legitimate rights and interests of citizens, legal persons. Before the national legislation and judicial interpretation was duly made, the people's court in the trial process of the commercial secrets, the basic spirit and principles should strictly abide by the law, reduce the connotation and extension of commercial secrets, practical, in order to promote the normal development of social, economic, and are not subject to interference by the improper competition behavior of the defendant or the defendant unit the.