摘要
2020年3月1日起施行的《刑法修正案(十一)》自1997年以来首次对侵犯商业秘密罪进行修订,而且修改幅度较大,如明确侵犯商业秘密罪的主观方面只能为故意,同时删除法条中的应知二字,并删除对于有关商业秘密的界定,从而使刑法与前置法以及司法实践相适应,同时针对重大损失标准单一而且难以认定的困境,将该罪由结果犯改为情节犯,这无疑不显示出我国对于加强商业秘密刑法保护的立场。与之相对应的,在我国经济高速发展的今天,对于商业秘密的保护日益受到社会的关注。而大量的刑民交叉的侵犯商业秘密案件不断出现,这次的刑法修改更使得刑民之间的界限相比于以往更需要界定与清晰。刑民交叉类案件审理的相关立法规定不完善,导致实践中问题频发,既有同案不同判的现象,也有案件判决相互冲突的现象,对此学术界未达成一致的意见。本文拟对刑法修正案对侵犯商业秘密罪的修改的角度切入,在提炼司法实践的基础上,对侵犯商业秘密罪刑民之间的界限进行研究。
The Amendment to the Criminal Law (11), which came into effect on March 1, 2020, revised the crime of infringement on commercial secrets for the first time since 1997, and the magnitude of modifications are great than usual. Such as the subjective aspects of the crime of infringement on commercial secrets can only be intent explicitly, at the same time, the word “should know” in the law is deleted, and the definition of commercial secrets is also deleted. In order to make the criminal law adapt to the law and judicial practice, at the same time in view of the single standard of heavy loss and difficult to identify the dilemma, change the crime from the result crime to the circumstance crime, which undoubtedly does show our country’s position on strength-ening the criminal law protection of trade secrets. Correspondingly, with the rapid economic development in our country today, the protection of trade secrets is paid more and more attention by the society. However, a large number of cases of cross-over infringement of trade secrets between criminals and civilians continue to appear, and the revision of the criminal law makes the boundary between criminals and civilians more necessary to be defined and clear than before. The related legislative provisions of the trial of criminal and civil cross-class cases are not perfect, which leads to frequent problems in practice, including the phenomenon of different judgments in the same case and the phenomenon of conflicting judgments. There is no consensus in the academic community on this. This paper intends to start from the Angle of the amendment of the criminal law to the crime of violating trade secrets, and on the basis of refining the judicial practice, study the boundary between the crime of violating trade secrets and punishing the people.
出处
《争议解决》
2024年第2期671-675,共5页
Dispute Settlement
