On January 8,Breaking news website 2024, the Provincial Court, the Provincial Procuratorate, and the Provincial Public Security Department jointly issued the "Guidelines for the Criminal Cases to Invad the Business Secrets".The third court of the Provincial Court of Civil Affairs (Intellectual Property Division) Tang Maoren, Cai Cuiying, deputy director of the Provincial People's Procuratorate and Director of the Intellectual Property Office, and Zheng Zhaoli, a second -level senior sheriff of the Food and Drug Investigation Team of the Provincial Public Security Department attended the press conference.Zhang Zhiping, a second -level inspector in the court and director of the News Office, presided over the press conference.
Jiangsu Higher People's Court
Jiangsu Provincial People's Procuratorate
Jiangsu Provincial Public Security Department
Get in the guidance of violating criminal cases of business secrets
In order to strengthen criminal judicial protection of business secrets, unify the case handling standards, standardize the case handling procedures, improve the level of case handling, form a joint effort, maintain the market order of fair competition, and optimize the business environment of the rule of law, the Jiangsu Higher People's Court, the Jiangsu Provincial People's Procuratorate, JiangsuThe Provincial Public Security Department has formed a guidance for the invasion of criminal cases of business secrets.
1. The overall requirements for violating criminal cases of business secrets
The first is to adhere to strict and fair justice.Adhering to the legal and punishment of the crime, the punishment of the crime, the trial centered on the trial, the implementation of the criminal policy of lenient and strictness, accurately applying the confession and confession system, so as to be convicted in accordance with legal crimes, evident and strictness, and punishment.
The second is to persist in protecting and incentive innovation.Give full play to the function of protecting business secrets to inspire innovation, and further improve the criminal protection effectiveness of business secrets.Focus on cracking down on criminal behavior of invading the degree of innovation, making breakthroughs and promoting economic and social development, and involving core technology and business secrets involved in key areas, and inspire high -quality innovation and key core technologies;, Fair competition market order.
The third is to adhere to the entity program.Fully consider the characteristics of business secrets, the concealment of criminal behavior, the amount of losses or the difficulty of illegal income, and properly handle the criminal cases of violations of commercial secrets in accordance with the law, ensure the fairness of the judgment, the procedures for legitimate procedures, and effectively protect the legal rights of the right holder.Promote the coordination of civil infringement procedures and criminal judicial procedures to avoid conflict between results.Reduce the cost of rights protection of rights holders and the burden of proof, and guarantee the entity and procedure rights of the right holders, suspects, and defendants in accordance with the law.
2. The identification of "business secrets"
In accordance with the relevant laws and judicial interpretations of the People's Republic of China on the "Regulations of the People's Republic of China Anti -Unfair Competition Law" and the "Supreme People's Court's Regulations on Affairs of Civil Cases to Instead of Business Secret Civil Cases", the information advocated by the rights claims in accordance with the law is business secrets.
(1) Connotation and type of business secrets
Commercial secrets refer to business information such as technology information and business information that do not know about the public, have business value, and adopt corresponding confidentiality measures.The business secrets advocated by the right holder should be clear and clear.
1. Technical information refers to the structure, raw materials, components, formulas, materials, samples, styles, new plant breeding materials, processes, methods or steps, algorithms, computers, computer programs, computer programs, computer programs, computer programs, computer programs, computer programs, computer programs, algorithms, or their documentsinformation.It can be a complete technical solution or one or several relatively independent technical points in the complete technical solution.
Common technical information includes size tolerances in drawings, form tolerances, roughness, pattern drawing (expression method), size marking, technical requirements; the proportion of ingredients and ingredients in the product formula; materials and ratio in the process process, Value, links, steps; computer program code, parameters set to meet certain technical purposes, specific algorithms, etc.
The right holder cannot generally advocate design drawings, production technology or computer code to constitute technical secrets, and it should clearly constitute the specific content, links, steps, etc. of technical secrets.
If the algorithm in computer software constitutes technical secrets, it shall clarify the problems, steps, and architecture that the algorithm needs to solve.
2. Business information refers to information, management, sales, finance, planning, samples, bidding materials, customer information, data and other information related to business activities.It can be a complete business plan or a number of relatively independent information element individuals or combinations in the business plan.
Customer information includes customer names, addresses, contact information, transaction habits, intention, content and other information.
The right holder cannot only claim that specific customer information constitutes commercial secrets based on the existence of long -term stable transaction relationships. It should be clear that its unique content obtained through commercial negotiations and long -term transactions, such as customer specific needs, transaction habits, supply time, price bottom line, Profit space, procurement channels, sales channels, production and operation capabilities, etc., to avoid the public names, addresses and other information that the public knows as business secrets.
(2) The constituent elements of business secrets
The constituent elements of business secrets should be reviewed from the three requirements of the three essentials of "confidential measures" from the time when the information occurred "not to know the public", the "business value" and the right holder have taken the corresponding "confidential measures".
(3) The identification of "not knowing the public"
1. Overall thinking.The right holder should clarify the difference between the relevant information that constitutes the business secret and the information known to the public.The request protection information is generally known and easy to obtain the relevant personnel in the area when criminal acts occur, and it should be identified as not to be known for the public.
The scope of the "public" subject that is not known to the public is not limited to the personnel in the field of information, but the relevant information has been known by most people or ordinary people in the area, and it is naturally known by the public.
2. Determine whether the technical information is not known for the public. You can solve the professional opinions provided by technical experts, technical investigators or other people with specialized knowledge, as well as new scientific and technological investigation reports. If necessary, you can solve it through technical appraisal and other means.
3. Determine whether the customer information is not known for the public, and should pay attention to the uniqueness of the customer's information. Whether the right holder has paid a certain amount of labor, money and efforts for the formation of the information, and whether the information is public or easy to from normal channels from normal channels.get.Usually, whether the right holder and the customer have a relatively stable transaction relationship, one -time, accidental transactions, and customers who have not yet traded do not constitute customer information in the sense of business secrets.
4. If the suspect and the defendant do not raise objections to the relevant information, the corresponding materials or clues shall provide the corresponding materials or clues for verification of the case handling authority.
If there is evidence to prove that there is one of the following circumstances, it can be identified as the public to know:
(1) This information belongs to general knowledge or industry practice in the area;
(2) This information involves simple combinations of the size, structure, materials, and components of the product. Relevant personnel in the area of the affiliated field can be obtained directly by observing the listing products;
(3) This information has been disclosed publicly on public publications or other media, such as public publications such as national or industry technical standards, textbooks, reference books, dictionaries, patent documents, public publishing, public publishing, etc.Items
(4) This information has been disclosed through public report meetings, exhibitions, etc.;
(5) Relevant personnel in the area can obtain the information from other open channels.
The following situation does not affect the relevant information and does not know the public:
(1) New information formed by combining, organizing, improved, and processing the information known to the public will meet the standards and conditions of the public;
(2) Patent reviewers, pharmaceutical review agencies and other government functional departments have learned about business secrets due to their duties of patent, drugs and other approval duties.
(4) The identification of "commercial value"
The information requested by the right holder has a real or potential commercial value because it is not known to the public, and can bring a competitive advantage. If it is not limited to the following circumstances, it can determine that it has commercial value:
1. It can bring a certain economic income to the right holder;
2. Can be implemented and achieve certain innovation purposes to achieve certain innovation effects;
3. It can have a significant impact on the production and operation of the right holder;
4. In order to obtain the information, the right holder pays the corresponding investment, research and development costs or operating costs;
5. This information can bring competitive advantages to the right holder.
If the phased results formed in production and operation activities meet the provisions of the preceding paragraph, it may be determined to have commercial value.
(5) The identification of "corresponding confidential measures"
1. Overall thinking.It should be comprehensively considering the nature of business secrets and its carrier, the commercial value of business secrets, the degree of recognition of confidentiality measures, the corresponding degree of confidentiality measures and the corresponding degree of business secrets, and the willingness of the right holder.EssenceConfidential measures can usually prevent business secrets from being obtained by others, and they do not require everything; confidentiality measures must be able to make relatives who bear confidential obligations aware that relevant information needs to be confidential.
If the right holder takes confidentiality measures after the information is formed for a period of time, it shall be tightly reviewed in conjunction with the specific cases. If there is no opposite evidence that the information has been leaked, the confidential measures can be determined.
2. The form of confidential measures.If one of the following circumstances, if it can prevent the leak of business secrets under normal circumstances, the right holder shall take the corresponding confidentiality measures:
(1) Signing a confidentiality agreement or an obligation to confidentiality in the contract;
(2) Through the articles of association, training materials, rules and regulations, written notifications, etc., it shall propose confidential requirements for employees, former employees, suppliers, customers, visitor, etc. who can contact and obtain business secrets;
(3) Limit visitors or distinguish management in production and operation places such as confidential buildings, workshops;
(4) Differentiated and managed business secrets and their carriers by labeling, classification, isolation, encryption, blocking, sealing, restrictions on the scope of personnel that can be contacted or obtained;
(5) For computers, electronic equipment, network equipment, storage equipment, software, etc. that can be contacted and obtained, we should take measures such as prohibiting or restricting use, access, storage, and replication;
(6) Requires the business secrets and carriers that resign employees to register, return, remove, destroy their contact or obtain, and continue to assume confidentiality obligations;
(7) Take other reasonable confidentiality measures.
3. Determination of general confidentiality clauses.The content of the business secrets that require confidentiality should be specifically clear in principle, but only general requirements for conservative business secrets, such as confidentiality agreements, confidentiality terms, labor contracts, rules and regulations, etc., and the confidentiality measures of the specific information content that does not clearly keep secrets cannot be denied.It is necessary to comprehensively judge whether the criminal suspects and defendants actually know about their contact or obtaining information for business secrets, whether they take improper means, and the actual possibility of related information.
If one of the following circumstances, it can be determined that the general and reasonable confidentiality measures can be determined that the terms of general confidentiality are effective and reasonable:
(1) In the future work, the right holder clearly informs the criminal suspects and the defendant's relevant information as a business secret;
(2) According to the principles of honesty and trust, and the nature of the contract, the purpose, the process of contracting, the transaction habits, etc., the criminal suspect and the defendant know or should know that the information they contact or obtain is a business secret;
(3) Criminal suspects and defendants deliberately adopt an inaccurate means to obtain information advocated by the right holder, or disclose, use, or allow others to use information obtained by improper means, and there is no evidence to prove that the information has been publicly disclosed before before being disclosed before.Essence
Third, the identification of "invading business secrets"
(1) The identification of "obtaining business secrets with unfair means"
1. Overall thinking.The premise of identifying this behavior is that the suspect and the defendant did not master, know or hold business secrets before, and should be eliminated by the situation of legal regulations, duties or contracts, and legally grasp, know or hold business secrets in order to use it in orderDifferent from "violations of confidential obligations or the requirements of the rights of rights on conservative business secrets".
2. The identification of "theft, bribe, fraud, coercion, electronic invasion, or other improper means".
(1) Theft refers to obtaining business secrets through a secret stealing business secret carrier or unauthorized through photography, camera, replication, monitoring and other methods.The stolen objects, including the tangible carrier of the business secret or the electronic information contained in a formal carrier.After stealing business secrets, it should also be identified as theft method with memory.
Theft must have the subjective purpose of stealing business secrets.For the purpose of stealing ordinary property, those who actually obtain business secrets do not constitute a crime of violating business secrets.I do n’t know if it ’s a business secret when stealing. I found that the business secrets were still disclosed, used, or allowed others to use them.
(2) Bringing refers to obtaining business secrets by giving property interests such as property, high salaries, shares, or promise promotion or non -property interests.
If the bribery behavior is infringed with the crime of business secrets and the combination of commercial bribery crimes, it is necessary to combine the case situation to determine the crime and punishment according to the theory of competition.
(3) Fraud refers to the use of fictional facts and concealing the truth, so that others are trapped in the wrong understanding and delivering business secrets.
(4) Reinforcement refers to obtaining business secrets through damage, threats or threatening of life, health, privacy, property, reputation, etc., to obtain business secrets.
(5) Electronic invasion refers to the use of technical means such as hackers and Trojans to destroy technical prevention measures of others, invading computer information systems, etc. to obtain business secrets, and usually use cracking, stealing identity certification information, forcibly breakthrough security tools.If unauthorized or transcending the use of computer information systems, etc., commercial secrets shall be identified as an electronic invasion method.
If there is a crime of violations of commercial secrets and illegal obtaining data systems of computer information systems due to the invasion of business secrets, the crime and punishment of the competition theory.
3. Obtaining a crime by obtaining business secrets in unfair means, not based on the premise of use.If the carrier of business secrets is obtained by improper means, the relevant information has not been extracted from the carrier, and it can be determined that it has obtained business secrets.
4. The nature and severity of other improper means should be equivalent to theft, bribery, fraud, coercion, electronic invasion and other behaviors. The behavior itself is illegal.Generally speaking, if you obtain the business secrets of the right holder in violation of the laws of law, the principles of honesty, or the recognized business ethics, it shall be determined to obtain business secrets by other improper means.
5. Anyone who obtains the infringement information through self -development or reverse engineering is not an act of violating business secrets.
Reverse engineering refers to the technical information of the product obtained the product through technical means to disassemble, mapping, and analysis of products obtained from open channels.
After obtaining the business secrets of the right holder, if the reverse project proposes the defense, it will not accept it.
(2) The determination of "violation of the obligation of confidentiality or violation of the rights of the rights on conservative business secrets"
1. Overall thinking.The premise of identifying this behavior is that the suspect and the defendant are legally grasped, knew, or hold the owner's business secrets in accordance with the law, duties or contracts.
For the business secrets of the right holder because of the convenience of work, but usually do not need to know or grasp the criminal suspects and defendants who do not need to know or master business secrets, and use work convenience to actively collect them.Get business secrets.
2. Observation of confidentiality obligations.Although there is no obligation to confidentiality, according to the principles of honesty and facilities, and the nature, purpose, the process of contracting, transaction habits, etc. of the contract, the information that knows or knows that it should know or obtained is the main body of business secrets.Employees, former employees, counterparties of transactions, and other units or natural persons.
To determine whether employees, former employees have channels or opportunities to obtain the business secrets of the right holder, you can consider the following factors related to it:
(1) Terminal, responsibilities, and authority;
(2) The task of the job or unit allocation assumed;
(3) Participate in the specific situation of production and operation activities related to business secrets;
(4) Whether to keep, use, store, copy, control or legally contact, obtain business secrets and its carrier in other ways;
(5) Other factors that need to be considered.
(3) The identification of "infringement of business secrets"
1. Overall thinking.The main body of this behavior is "obtaining business secrets with improper means" and "violation of confidentiality or requirements for the right of conservative business secrets".Use, disclose or allow others to use the business secret.
2. "Knowing" is a necessary condition for this type of behavior to constitute a crime, that is, it is clear that the source of the business secrets is illegal, including but not limited to the following situations:
(1) Knowing that others have assumed civil liability due to infringement of business secrets, subject to administrative penalties, or even criminal punishment;
(2) Knowing that others are professional business spies.
(4) The determination of "disclosure, use or allow others to use business secrets"
1. Disclosure means that other people other than inform the right holder, or publicize the content of the business secrets to the public.The degree of disclosure of disclosure or the number of audiences generally does not affect the establishment of the disclosure behavior.
2. Use, refers to the use of commercial secrets directly in production and operation activities, or modifying and improving business secrets after use, or adjusting, optimizing, and improving relevant production and operation activities according to business secrets.
3. Allowing others to use refers to providing the business secrets of their own rights to others, or instruct others for production and operation activities.
(5) The same sex judgment
1. The information involved is the same or substantial as the owner's business secrets, or as part of the key role that played a key role in achieving technical purposes and effects in the business secrets.
When determining whether it constitutes the same substantialness, the following factor can be considered:
(1) The difference between the information involved and the secret of business secrets;
(2) Whether the relevant personnel in the area of the affiliated field are easy to think of the difference between the information involved and the business secrets involved in the occurrence of business secrets;
(3) Is there a substantial difference in the use, method, purpose, effect, etc. of the information involved in the case and business secrets;
(4) The situation of related information related to business secrets in the public areas;
(5) Other factors that need to be considered.
2. The same sexual judgment of commercial secrets involved in computer software shall be carried out around the commercial secret protection objects involved in the case, which is usually compared with the source code of criminal suspects, defendants and rights.
If the source of the suspect and the defendant cannot be obtained, the counter -compilation code of the target program code can be compared to determine whether the two are the same or substantial.If the anti -compilation code of the target program code in the computer software in the criminal suspect and the defendant's computer software is the same as the corresponding code segment of the algorithm core function module in the rightist program code, and the two can be identified as the same.
If an uninterprented target program code, or the technical solution reflected in the source program code as the business secret protection object, compare it with the corresponding content.
(6) Determination of common crime
Criminal suspects, defendants, and criminal suspects, and defendants who have committed confidentiality obligations to conspire to jointly implement business secrets and constitute common crimes. According to the specific circumstances, it is identified separately:
1. Criminal suspects and defendants who do not associate confidentiality obligations to seduce criminal suspects and defendants who disclose their own business secrets by seduce and bribery.
2. Criminal suspects and defendants who undertake confidentiality obligations actively disclose to others, or allow them to use the owner's business secrets to obtain property or non -property interests, and identify the two of them violate the confidentiality obligations or the relevant conservative business of the rights.The secret requirement to infringe business secrets.
Fourth, the determination of the "serious plot" and "particularly serious plot" of the affairs of business secrets
(1) Overall thinking
When the "serious circumstances" and "serious circumstances" of infringement of commercial secret crimes can be used to cause major losses to the owner as the main identification standard, and the amount of losses or illegal income caused by the rights of rights in accordance with the relevant judicial interpretation provisions.
(2) The determination of "the right holder who directly leads to business secrets is bankrupt and closed down due to major operating difficulties"
The commercial value that infringement of commercial secrets has greatly reduced the commercial value of business secrets, the serious damage of the rights owner's goodwill, a large reduction in production, a large number of customers lost, or losing most of the market share, which leads to major operating difficulties in the rights of the rights, and bankruptcy and closure can be determined to directly leadThe owner of business secrets bankrupt and closed down due to major operating difficulties.
The consequences of bankruptcy and closure due to major operating difficulties are directly causal relationships with the consequences of bankruptcy and closure of business secrets.
(3) The identification of "reasonable license use fee"
Taking reasonable license use fees as the criterion for determining losses should be limited to the situation of obtaining business secrets from improper means.
Reasonable license fees can comprehensively use the same or other commercial secret right holders to use the same or other commercial secret rights permits to use the costs of similar business secrets, as well as the types of business secrets, business value, the nature of licenses, content, and actual performance, and violations of violationsFactors such as the plot and consequences of business secret crimes.
(4) The identification of "commercial value"
If the business secrets have been known or lost due to the infringement of business secrets, the amount of losses can be determined according to its business value.
Commercial value can be comprehensively determined by related factors such as the research and development costs of business secrets, the implementation of the income of the business secrets, including the actual benefits and expected benefits, and the time that can maintain the competitive advantage.
(5) The identification of "property interests"
The use of the business secrets of the right holder as the equity and creditor's rights obtained by the consideration can be identified as property interests.
The criminal suspect and the defendant have delivered the business secrets that have been delivered by the business secrets but have not yet obtained, or the property interests that have not been delivered by the business secrets can be identified as their actual illegal income.If the business secrets have not been delivered and have not actually obtained property interests, the property interests are not identified as illegal income.
(6) Determine the applicable of the technical contribution rate when the amount of the right holder's loss or the criminal suspect, and the amount of illegal income from the defendant
The technical secrets that have been violated are part of the overall technical solution or the product of the product that violates the commercial secrets is another product parts. If the technical information or parts play a core or decisive role in the overall technical solution or the entire product, the overall plan or the overall plan orCalculation of profit generated by the entire product.If the core or decisive role cannot be afforded, under the conditions that can be distinguished, factors such as the technical information, parts in the overall technical solution, the role of the entire product, and the contribution rate of the overall technical effect should be reasonably determined to reasonably determine the rights to determine the rights.The amount of losses or criminal suspects and defendants illegal income.
The technical contribution rate can be comprehensively determined based on the appraisal opinions, audit evaluation opinions, technical experts or technical investigators consulting opinions, and other evidence of the case.
Fifth, technical appraisal on infringing business secret criminal cases
(1) The selection of identification
In the process of violating business secrets, you can entrust the appraisal for specialized issues.If you can find out the technical facts by holding expert meetings and technical investigators, such methods, etc., you can solve it without appraisal.Whether you need to commission the technical appraisal shall be determined by the comprehensive consideration of the case handling authority.Non -technical facts, such as whether the business information is not known to the public and the identification of the same sex, generally does not solve it through appraisal.
(2) Determination of the appraisal agency
For matters that need to be appraisal, those who have corresponding qualifications and specialized knowledge shall be entrusted to identify appraisal agencies with corresponding testing equipment and testing conditions.
Involved in the appraisal of special technical fields, the appraisal agency can entrust other testing agencies for technical testing due to the lack of professional testing equipment.Explain that the appraisers assume legal responsibility for the appraisal opinions issued by the test results.
If the same matters have been entrusted by the right holder, the defendant, the suspect, or other case handling agencies, the same appraisal agency is generally not entrusted to identify it.
(3) Avoidance of the appraisal agency and appraiser
If the case -handling agency entrusted the technical appraisal, whether the appraisal agency and the appraiser shall have the identification conditions and ability, and whether the case handler, the right holder and their entrusted agent, the criminal suspect, the defendant and their defender, the trial of the case are legal,Delivery relationships, as well as other circumstances that may affect fair appraisal.If the appraisal agency has the above situation, it shall not entrust them to identify; if the appraiser has the above situation, the appraisal agency shall be required to replace it in a timely manner.
The case handling agency shall promptly informed the appraisal agency and the appraiser's situation to inform the right holders, suspects, and defendants, and clearly inform them of the rights and periods of applications to avoid.If objective reasons such as case investigation cannot be notified in time, the above information shall be notified in a timely manner after the relevant incident disappear.The situation of the appraisal agency and appraiser shall include the name of the appraisal agency, the name of the appraiser, the work unit, the position, the title, the education, the degree, and the professional field.
If the right holder, the criminal suspect, and the defendant propose to avoid the application, the case handling authority shall carefully review the decision and inform the applicant that the verbal notification shall be recorded in the transcript.If the reason for avoidance is proper, the appraisal agency and appraiser shall re -determine.
The above avoidance regulations are applicable to testing agencies and testing personnel entrusted by the appraisal agency.
(4) Determination of appraisal matters
1. The specific content of the technical secrets claimed by the right holder should be fixed before the technical appraisal.
2. In the appraisal letter, the appraisal should be accurately expressed, and the appraisal of the appraisal should be accurately expressed, and the appraisal agency shall issue an appraisal opinion based on the appraisal procedures and rules on the basis of fully collecting relevant technical data.
The appraisal matters generally include whether the technical information advocated by the right holder is known to the public; the technical information used by the suspect and the defendant is the same or substantially the same as the technical secrets claimed by the right holder.
The appraisal matters should be operable to avoid matters that cannot be appraised by the content of the legal judgment that cannot be approved by the legal judgment.
3. The same sex appraisal shall compare the technical solution actually used by the suspect and the defendant with the technical solution of the right holder.If the actual technical solution has been destroyed, it is impossible to compare, and the technical solutions reflected by the technical scheme reflected by the technical data or product of the criminal suspect, the defendant's technical data or the product can be used for comparison.
4. For those who have not been used after obtaining the technical secrets of the right holder by improper means, they can do the same sexual identification.
5. The technical information of the technical secret records of the right holder is the same as the actual use of the actual use from the criminal suspect and the defendant, and may not do the same sexual identification.
(5) Pre -review of identification
1. Before the appraisal, the case handling agency shall listen to the rights, suspects, and defendants in person, suspects, and defendants based on the case conditions or in writing.If you listen to the opinions in person, you should make a transcript.For the opinions of the rights, the suspect, and the defendant, the case handling agency shall carefully review it, and the opinions will be converted to the appraisal agency in a timely manner, asking them to fully review and absorb legitimate and reasonable opinions.
2. Before the appraisal opinion is officially issued, the case handling agency may be based on the premise that the appraisal process is not influencing the independent appraisal conclusion of the appraisal agency.Whether the expressions are clearly reviewed and other aspects, and put forward opinions.
(6) review of appraisal opinions
1. The case handling agency shall strictly review the procedures for appraisal and appraisal opinions, including whether the appraisal agency and the appraiser have statutory qualifications and whether there is a should avoided;, Whether the contents of the relevant extraction transcripts, seizure lists are consistent and the inspection materials are reliable; whether the form of the appraisal opinion is complete; whether the appraisal procedure meets the law and relevant regulations;Whether the appraisal opinion is clear; the appraisal opinion is related to the facts of the case; the appraisal opinions are contradictory with other evidence such as the inspection, inspection transcript, and related photos. If there is contradiction, it can be explained reasonably.
If the appraisal opinions have unclear content and semantic differences, they can inquire with the appraisal agency and appraiser, or retrieve the statement of the appraiser in the appraisal process, etc., and require them to explain in detail.
2. The case handling agency shall listen to the opinions of the right holder, suspect, and the defendant on the appraisal procedures and appraisal opinions.If you listen to the opinions in person, you should make a detailed transcript.If the right holder, the criminal suspect, and the defendant have objections to the appraisal opinion, the case handling agency shall carefully review it, and may request the appraisal agency to make a corresponding instructions.
3. During the trial of the people's court, both parties shall organize and prosecution to conduct a qualifications on the appraisal opinions.If the right holder and the defendant objected to the appraisal opinion, the people's court may request the appraiser to accept inquiries or make a written explanation according to the case of the case.
6. Procedure to deal with criminal cases invading business secrets
(1) Conditions for acceptance of public security organs
When reporting the case or accusing the case, the following preliminary evidence should be provided to prove the business secrets claimed and suspected of criminal acts:
1. Specific content and carrier of business secrets;
2. Certificate of ownership of business secrets;
3. Commercial secrets do not know the appraisal opinions, check new search reports or expert opinions, etc.;
4. Business secrets have commercial value and take corresponding confidentiality measures;
5. The accused person implements related clues that infringe on business secrets;
6. Business secrets were violated and caused preliminary evidence of bankruptcy and closure that caused the amount of losses of the right holder to be more than 300,000 yuan or caused bankruptcy and closure due to major operating difficulties.
The reporter can submit the same or substantial evidence of the same or substantial technical secrets used by the accused person.
(2) File case review
After review, the public security organs believe that there is a fact that suspected of crime, or other circumstances that meet the criticism of the crime of violating business secrets. If the criminal responsibility is required and the local public security organs are under the jurisdiction of the local public security organs, the case shall be investigated.
Those who do not meet the requirements of the case shall be made in accordance with the law, and the reporters will be resolved to the reporters through civil lawsuits and administrative procedures.For criminal responsibility but not under the jurisdiction of the local public security organs, public security organs with jurisdiction shall be transferred.
(3) Accurate and careful application of compulsory measures
To handle cases of violations of business secrets, it shall strictly follow the legal procedures and accurately apply compulsory measures to limit the right to the human body and property rights.Before the technical information, business information, etc. used by the accused person, are the same or substantially the same or substantially identified by the right holder. In principle, compulsory measures to restrict personal and property rights are not taken in principle.
Criminal cases of violations of commercial secrets shall be responsible for accepting the investigation by the county -level public security organs of the crime, and the police station shall not handle it.When necessary, municipal public security organs can handle criminal cases of violations of commercial secrets under the jurisdiction of county -level public security organs.
The review, arrest, review and prosecution, and legal supervision of the criminal case of violations of business secrets shall be handled by the grass -roots people's procuratorate responsible for jurisdiction of intellectual property cases.For a major and complicated case of violations of commercial secrets, if necessary, after negotiation with the Municipal People's Procuratorate and the Intermediate People's Court, the Municipal People's Procuratorate may file a public prosecution to the Intermediate People's Court.
Criminal cases of violations of commercial secrets are judged by the grassroots people's courts with jurisdiction of intellectual property civil rights.When necessary, the Intermediate People's Court can judge the first trial of the first trial of the grassroots people's court to infringe the criminal criminal case of commercial secrets; the grass -roots people's court believes that the case of the first trial of the trial of the intermediate people's court is required to infringe the business secret criminal case, which can be transferred to the intermediate level.People's Court trial.
(5) Procedures for Criminal Cross Cases
During the criminal case, the victim filed a civil lawsuit with a civil lawsuit and did not violate the provisions of the jurisdiction of civil case levels. It could explore and carry out civil lawsuits and solve the issue of civil compensation.After the criminal and civil lawsuit cases were closed, the victims would not filed a civil lawsuit again.
Due to the same prosecution of violating business secrets, civil infringement disputes and suspected criminal criminal cases that violate commercial secrets, respectively. In principle, the two cases can be handled separately, but the case handling agency should strengthen coordination to ensure that the results of the processing are unified.
The parties have not been tried on the grounds that the criminal cases involving the same complaint against business secrets have not yet been tried to suspend the trial of civil cases that violate business secrets. After listening to the opinions of the parties, if they believe that the trial results of the criminal case should be suspended, they shall be suspended.The lawsuit, after the trial of criminal cases, will be restored to the trial of civil cases.If civil cases must not be based on the results of the criminal case, civil cases should continue to be tried.
At the same time, if the defendant who assumes criminal liability and civil liability, if the property is not enough to pay, it shall first bear the civil liability for the victim.
Original title: "Guidelines for Jiangsu Higher People's Court, Jiangsu Provincial People's Procuratorate, and Jiangsu Provincial Public Security Department to handle the guidance of violations of business secret criminal cases"