1. How to determine the amount of loss for the crime of infringement of trade secrets
1. ( 1) The losses suffered by the trade secret right holder due to infringement shall be used as 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 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 shall be the amount of loss. If the infringer's behavior is indirect use, the benefits generated shall be the amount of loss and compensation;
(3) The amount shall be no less than the reasonable amount of the trade secret use license. The usage fee is the amount of losses and 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.
2. Legal basis: "Criminal Law"
Article 219【 Crime of infringement of trade secrets] Whoever commits one of the following acts of infringement of trade secrets, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, and concurrently or solely with a fine; if the circumstances are particularly serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years, and shall also be fined :
(1) To steal or bribe, fraud, coercion, electronic intrusion or other improper means to obtain the business secrets of the right holder;
(2) Disclose, use or allow others to use the means mentioned in the preceding paragraph; Obtaining the right holder’s trade secrets;
(3) Violating confidentiality obligations or violating the right holder’s requirements for keeping trade secrets, disclosing, using or allowing others to use the trade secrets in his possession.
Whoever knowingly obtains, discloses, uses or allows others to use the trade secrets listed in the preceding paragraph shall be deemed to have infringed the trade secret theory.
The right holder mentioned in this article refers to the owner of the trade secret and the user of the trade secret with the permission of the owner of the trade secret
2. In cases of trade secret infringement, can criminal and incidental civil lawsuits be filed
(1) Not all infringements can be filed with criminal incidental civil lawsuits. Only cases where personal rights are infringed upon and property is destroyed by criminals and material losses are suffered can be brought. File a criminal incidental civil lawsuit, and while requesting the court to identify the criminal suspect's criminal behavior, achieve the purpose of obtaining civil compensation;
(2) Legal basis : Article 219 of the "Criminal Law of the People's Republic of China", whoever commits any of the following acts of infringement of trade secrets and causes heavy losses to the right holder of the trade secret shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or solely be fined ; Those who cause particularly serious consequences shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and shall also be fined:
1. Theft, inducement, coercion or other improper actions Obtaining the right holder’s business secrets by means;
2. Disclosing, using or allowing others to use the right holder’s business secrets obtained by means of the previous paragraph;
3. Violate the agreement or the right holder's requirements for keeping trade secrets, disclose, use or allow others to use the trade secrets in his possession. Anyone who knowingly or should have known about the acts listed in the preceding paragraph and obtaining, using or disclosing the trade secrets of others shall be deemed to have infringed the trade secrets.
Once a trade secret is leaked, the right 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. I hope the above content can be helpful to you. If you have other questions, you can click the button below for consultation, or go to the Legal Savior Network to consult a professional lawyer.
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