1. How to calculate losses for the crime of infringement of trade secrets
1. Based on commercial The losses suffered by the secret rights owner due to infringement shall be the basis for conviction, sentencing and actual compensation. All calculable losses in property and income of the trade secret right holder shall be regarded as the amount of loss. This includes both the right holder’s own income and the right holder’s expected income within a number of years. The main factors to consider are: the cost of research and development of trade secrets, the maturity level of trade secrets, the length of the utilization cycle of trade secrets and whether they can be reused, as well as the use and transfer of trade secrets, market supply and demand conditions, etc.
2. The amount of loss and compensation shall be based on the benefits obtained by the infringer due to the infringement. The calculation of this loss is based on the premise that the infringer has not disclosed or transferred it to a third party and has not made it known to the public. If a trade secret is illegally sold to others, the income from the illegal sale shall be the amount of loss; if a trade secret is illegally used for production and business activities, the profit gained or increased as a result shall be the amount of loss. If the infringer's behavior is indirect use (such as using the technical information and business information of the original unit brought by job-hopping employees, etc.), the benefits generated shall be the amount of loss and compensation.
3. The loss shall be no less than the reasonable usage fee of the trade secret use license and Amount of compensation. When the above two methods are inconvenient to calculate, this compensatory method can be used to calculate the amount of loss. This method assumes that when the infringing party obtains permission to use the right holder's trade secret under normal circumstances, what the license fee should be, and then presumes that the amount is the amount of loss, but this does not mean that the infringer has obtained the trade secret. legal right to use. What is particularly worth mentioning here is that the criminal law and judicial interpretations do not provide for or explain “significant losses” and “particularly serious consequences.” In judicial practice, "significant losses" generally refer to economic losses or loss of competitive advantages, competitiveness or even competitive qualifications caused to the right holder's production and business activities; "especially serious consequences" refer to special consequences to the right holder's production and business activities. Significant economic losses may even lead to corporate liquidation and bankruptcy. Depend onIf this crime is committed as a result, it does not constitute a crime if there is no "significant loss". Therefore, based on the principles of legality of crime and appropriateness of crime and punishment, the legislative or judicial organs should make clear provisions or explanations on this to facilitate actual operation.
4. Legal basis: "Interpretation of the Criminal Procedure Law of the People's Republic of China Article 175 If a victim suffers material losses due to criminal infringement of his personal rights or destruction of property by criminals, he has the right to file an incidental civil lawsuit during the criminal proceedings; if the victim dies or becomes incapacitated, his legal representative, Close relatives have the right to file incidental civil lawsuits.
If you file an incidental civil lawsuit or file a separate civil lawsuit to claim compensation for mental losses due to a criminal violation, the People's Court will generally not accept the case.
2. What are the constituent elements of the crime of infringement of trade secrets
1. The object of this crime is trade secrets;
2. The objective aspect of the crime of infringement of trade secrets is a violation of national anti-unfair competition laws and regulations. , infringement of trade secrets, causing heavy losses to the right holder of the trade secret;
3. The subject of the crime of infringement of trade secrets is a general subject;
In summary, once a trade secret is leaked, the rights holder's losses are often irreparable. In criminal trials, it is generally believed that this kind of loss should refer to actual losses, and actual losses include both direct losses and the actual benefits that the right holder will inevitably lose. Moreover, the losses caused to the right holder by infringement of trade secrets cannot only be based on the amount. On the basis of focusing on direct factors such as research and development costs, utilization cycle, maturity, market prospects, etc., various related factors, such as competitive advantages, should be comprehensively considered. Loss of status, decline in business reputation, etc.
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