Consideration of the "serious circumstances" of the crime of stealing, spying, buying, or illegally providing trade secrets abroad

"The crime of stealing, spying, bribing, or illegally providing trade secrets for a foreign country" (hereinafter referred to as this crime) is a new crime of intellectual property rights created by the Supreme People's Court and the Supreme People's Procuratorate in accordance with the "Amendment (11) to the Criminal Law of the People's Republic of China" adopted by the 24th Session of the Standing Committee of the 13th National People's Congress, corresponding to the criminal expression of article 219-1 of the Criminal Law, that is, "whoever steals, spies, buys or illegally provides trade secrets for an institution, organization or personnel outside the territory shall be sentenced to fixed-term imprisonment of not more than five years." Concurrently or individually fined; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than five years and shall also be fined". Unlike the other seven IP criminal offences that are circumvention offenders, this offence is committed and constitutes an offence if committed; "Serious circumstances" is the basis for aggravating the punishment. However, what constitutes "serious circumstances" has not yet been clarified by corresponding judicial interpretations. Since this crime is born out of the crime of infringing trade secrets, theoretical circles usually believe that the criminalization of the crime of infringing trade secrets can be directly regarded as the aggravating punishment of this crime, which not only reflects the homogeneity of the two crimes, but also reflects the sentencing characteristics of this crime as a felony. However, from the perspective of practice, since this crime involves foreign subjects, and the legal interests infringed are not limited to the right holder's trade secrets, but also involve the economic security of the state, the definition of "serious circumstances" of this crime, in addition to considering the general factors such as the rights holder's losses and the defendant's illegal gains, it is necessary to consider three additional factors.

The first is the value of trade secrets. Trade secrets are different from state secrets, and there is no hierarchical distinction between so-called top secrets, secrets, and secrets that represent the value of secrets, but there is also a distinction between the value of trade secrets objectively, and some trade secrets are even closely related to the national economy and people's livelihood and national economic security. For example, some traditional Chinese medicine production formulas are not only the trade secrets of the production enterprises, but also listed as the scope of protection of state secrets; For another example, ten major areas such as new generation information technology, high-end CNC machine tools and robots, biomedicine and high-performance medical devices belong to the key areas of the planning and development of "Made in China 2025", and the technical secrets of which are related to the international competitiveness of the national manufacturing industry; In particular, there are also some technical secrets related to national strategic industries and national defense security, such as rare earth mineral refining technology, aerospace engineering technology, etc. Trade secrets are the criminal object of this crime, and the act of infringing on trade secrets with special value is listed as a situation with serious circumstances, which is in line with the general understanding that "the difference in objects reflects the seriousness of the crime" (for example, the crime of stealing disaster relief and rescue funds and materials is heavier than the theft of general public and private property), which can reflect the key protection of the criminal law for national economic security.

The second is the number of units that were killed. The crime of stealing, spying, buying, or illegally providing trade secrets for overseas is different from the case of the crime of infringing trade secrets, and the defendant's criminal purpose and the way in which the criminal act is carried out are often affected by the criminal intentions of foreign institutions, organizations, and personnel, serving the interests and needs of foreign entities, and the target of infringement is often not just a single object. This feature was particularly evident in the 2009 Shanghai No. 1 Intermediate People's Court's trial of the case of Hu Shitai et al. infringing trade secrets. Hu Shitai and others, as employees of The Australian Rio Tinto Group in China, spied on, bribed and illegally provided commercial intelligence of several Chinese steel companies for overseas companies, seriously harming the interests of Chinese steel companies and causing huge losses to Chinese steel companies. Such victims are not limited to one enterprise, but involve the criminal act of infringing trade secrets of multiple enterprises in a certain field, because they endanger the overall economic security of a specific industry field of the country, no matter how much losses are caused to the right holder or how much the defendant has illegally gained, they should be included in the scope of serious circumstances, so as to implement the principle of proportionality between crime and punishment.

The third is the identity of the actor. This crime is the same as the crime of infringement of trade secrets, the subject of the act is a general subject, whether it has or does not have a special status, it does not affect the evaluation of the illegality of the act carried out by the perpetrator. However, in relation to the crime of infringement of trade secrets, the legal benefits of this crime focus on national economic security. Judicial practice shows that actors with special status such as state employees are more likely to endanger national economic security than actors who are general employees of the company. For example, state functionaries in state administrative authorities, specific industry associations, and large state-owned enterprises are more likely to be instructed, bribed, or threatened to obtain trade secrets in specific industries and fields, and the probability of success in crimes is also higher; Moreover, because the beneficiary of the criminal act of this crime is a foreign entity, as a state functionary, the perpetrator deliberately infringes on the interests of domestic enterprises and the national economic security for the sake of private interests, and seeks illegal benefits for foreign subjects, which itself reflects the subjective malignancy of the perpetrators. Therefore, it is necessary to include the acts of such persons with special status in the commission of this crime in the category of serious circumstances, so as to give play to the special preventive function of criminal law.

Under the background of the current economic globalization, international economic and trade activities are frequent, market competition is becoming increasingly fierce, and the phenomenon of commercial espionage is not uncommon. The "crime of stealing, spying, buying, or illegally providing trade secrets for overseas" added by the Amendment (XI) to the Criminal Law provides a strong legal guarantee for mainland enterprises to protect their intellectual property rights and enhance their international competitiveness. Strengthening forward-looking research on the application of the law to this crime, accurately defining the manifestations of "serious circumstances", increasing the protection of characteristic trade secrets in a targeted manner, and increasing the crackdown on specific criminal acts and the punishment of special perpetrators are conducive to enhancing the deterrent power of criminal justice on the mainland and safeguarding the overall economic security of the country.

(Author Affilications:Shanghai Higher People's Court)