Know all about the investigation of criminal cases of trade secrets
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I. Status of criminal cases involving trade secrets in Shenzhen
II. Jurisdiction over criminal cases involving trade secrets in Shenzhen
III. Infringement of trade secrets
IV. Standards for filing and prosecuting criminal cases of infringement of trade secrets
V. Determination of the amount of losses caused and the amount of illegal gains
VI. Process for acceptance and review of trade secret cases
VII. Investigative measures and matters needing attention after the filing of a case by the public security organ
VIII. Compulsory measures taken by public security organs after filing a case
Nine. Three necessary identification and attention issues
X. Identification challenges at the judicial level of law enforcement
Trade secret criminal investigation
Commercial secret
Criminal Detection
I. Status of criminal cases involving trade secrets in Shenzhen
As an important part of the core competitiveness of enterprises, trade secrets play a crucial role in the survival and development of enterprises. According to the captain of the Food and Drug and Environmental Crime Investigation Detachment of Shenzhen Public Security Bureau, in view of the characteristics of strong professionalism of trade secrets, many complex factors, difficulty in identifying secrets, and difficulty in identifying losses, it is necessary to avoid interfering in business competition through public power means and affecting the business environment. The Public Security Law takes a cautious attitude towards criminal cases of infringement of trade secrets, especially in the reporting process. Therefore, the criminal case of infringement of trade secrets is in a low case rate.
However, he also introduced that since September 2020, when the Food, Drug and Environmental Crime Investigation Detachment was in charge of the investigation, the trade secret cases that were transferred for review and prosecution and have been closed have finally been convicted by the court of the alleged offender.
II. Jurisdiction over criminal cases involving trade secrets in Shenzhen
On September 1, 2020, the Ministry of Public Security promulgated the "Regulations on the Division of Jurisdiction and Division of Criminal Cases of the Ministry of Public Security", and the cases of infringement of trade secrets were changed to be the responsibility of the Food and Drug and Environmental Crime Investigation Bureau. According to the distribution of intellectual property advantage enterprises and the actual needs of case handling, cases of infringement of trade secrets are handled by the Food and Drug and Environmental Crime Investigation Detachment of the Shenzhen Public Security Bureau. Each branch investigates according to its territorial jurisdiction. Major difficult cases are jointly investigated by the Food and Drug Environmental Investigation Detachment.
III. Infringement of trade secrets
(1) Obtaining the trade secrets of the right holder by theft, bribery, fraud, coercion, electronic intrusion, or other improper means;
(2) Disclosing, using, or allowing others to use the trade secrets of the rights holder obtained by the preceding means;
(3) Disclosing, using or allowing others to use the trade secrets in their possession in violation of confidentiality obligations or in violation of the right holder's requirements for keeping trade secrets;
(4) Instigating, inducing, or assisting others to violate confidentiality obligations or violate the right holder's requirements for keeping trade secrets, obtaining, disclosing, using, or allowing others to use the right holder's trade secrets.
Any natural person, legal person, or unincorporated organization other than a business operator that commits the illegal acts listed in the preceding paragraph shall be deemed to have infringed trade secrets.
IV. Standards for filing and prosecuting criminal cases of infringement of trade secrets
(1) causing losses of more than 300,000 yuan to the trade secret right holder;
(2) The amount of illegal income from infringing trade secrets is more than 300,000 yuan;
(3) directly causing the right holder of the trade secret to go bankrupt or go bankrupt due to major business difficulties.
(4) Other circumstances that cause significant losses to the trade secret right holder.
V. Determination of the amount of losses caused and the amount of illegal gains
The amount of losses or illegal gains caused may be determined in the following ways:
(1) If the trade secret of the right holder obtained by improper means has not been disclosed, used, or allowed to be used by others, the amount of loss may be determined based on the reasonable royalty of the trade secret;
(2) If, after obtaining the trade secret of the right holder by improper means, it discloses, uses or allows others to use it, the amount of loss may be determined according to the loss of sales profit caused by the infringement of the right holder, but if the amount of loss is lower than the reasonable license fee for the trade secret, it shall be determined according to the reasonable license fee.
(3) Where the obligee violates the agreement or the obligee's requirements for preserving trade secrets by disclosing, using, or allowing others to use the trade secrets in their possession, the amount of loss may be determined according to the obligee's loss of sales profits due to infringement.
(4) Knowing that the trade secret was obtained by improper means or in violation of the agreement or the right holder's requirements for preserving the business secret, the amount of loss may be determined according to the right holder's loss of sales profits due to infringement;
(5) Where a trade secret has become known to the public or has been lost as a result of the infringement of a trade secret, the amount of loss may be determined on the basis of the commercial value of the trade secret. The commercial value of the trade secret may be determined on the basis of the cost of research and development of the trade secret and the income from implementing the trade secret.
(6) Property or other property interests obtained by disclosing or allowing others to use commercial secrets shall be recognized as illegal gains.
The loss of sales profits of the right holder due to infringement as stipulated in Items 2, 3, and 4 may be determined by multiplying the total amount of sales reduced by the right holder due to infringement by the reasonable profit of each product of the right holder; if the total amount of sales reduced cannot be determined, it can be determined by multiplying the sales volume of the infringing product by the reasonable profit of each product of the right holder; if the total amount of sales reduced by the infringing product and the reasonable profit of each product cannot be determined, it can be determined by multiplying the sales volume of the infringing product by the reasonable profit of each infringing product.
If a trade secret is used for other business activities such as services, the amount of loss may be determined based on the reasonable profit reduced by the right holder due to infringement.
Remedial expenses incurred by the right holder of a trade secret to mitigate losses to business operations or business plans or to restore the security of computer information systems or other systems shall be included in the losses caused to the right holder of a trade secret.
VI. Review process for public security organs accepting trade secret cases
Report materials
(1) Evidence shall be provided to prove that the informant is the legitimate right holder of the trade secret.
(2) The specific content and carrier of the trade secret shall be provided;
(3) It shall provide an appraisal opinion that can prove that its technical information and business information are not known to the public.
(4) Evidence shall be provided to prove that the technical information, business information, and other commercial information have commercial value and that the right holder has taken appropriate confidentiality measures.
(5) Relevant evidence shall be provided to prove that the accused person has the conditions to obtain the trade secret and infringes the trade secret.
(6) It shall provide a loss or value assessment report where its loss has reached RMB 300,000;
(7) The right holder may provide evidence that can prove that the technical information and business information used by the accused are consistent with or identical to its own trade secrets.
Initial investigation matters
(1) the identity of the complainant and the relevant engagement letter
(2) The situation of the right holder and the accused in the industry, including the industrial and commercial registration, whether the right holder and the accused have the status of a representative of the National People's Congress and a member of the Chinese People's Political Consultative Conference, etc.
(3) the development and ownership of the trade secret
(4) the content of the trade secrets involved, especially their characteristics, uses, and industry leadership
(5) Verify with the appraisal agency the non-public appraisal opinions provided by the complainant, resolve the issue of the validity of the evidence entrusted by the complainant, and conduct a substantive review of the non-public appraisal opinions
Several issues involved in the initial investigation of the case
[Judgment of whether the right holder has taken appropriate confidentiality measures] Judgment is made by reviewing the characteristics of the information carrier involved, the right holder's willingness to keep secrets and the identifiable procedures for confidentiality measures, and the degree of difficulty for others to obtain them through legitimate means.
Preliminary verification of the possibility that the accused person has access to trade secrets and evidence of illegally obtaining, disclosing, or using illegally obtained trade secrets or allowing others to use the trade secrets in their possession.
The trade secrets infringed by the accused are the same or substantially the same as the trade secrets of the accused, and if conditions are met, the products produced by the accused and the products produced by the accused can be entrusted to an appraisal agency for identity identification.
[Review of Incrimination Criteria] Verify with the evaluation agency whether the economic losses caused by the infringement to the complainant meet the standard of 300,000 yuan or meet other filing conditions, and conduct a substantive review of the evaluation report.
[Scope of calculation of loss] Whether the scope of loss assessment provided by the right holder when reporting the case is consistent with the scope of the trade secret technical information (technical information identified by the appraisal agency as not known to the public) claimed.
[Information related to the accused] The name, gender, age, place of origin, occupation, residence, ID number, passport number, Hong Kong and Macao ID number, family member, vehicle number, communication information (mobile phone number, office phone number, home phone number, QQ number, WeChat, Weibo, e-mail, etc.), whether they have the status of a representative of the National People's Congress or a member of the Chinese People's Political Consultative Conference, and whether they have any criminal records.
Whether there is a civil lawsuit or arbitration, or administrative penalty (related to the rights involved).
case filing review
After filing a case for review, if it is found that there are criminal facts, the amount of the suspected crime or other circumstances meet the standards for filing and prosecuting the crime of infringing trade secrets, and criminal responsibility needs to be investigated and falls under the jurisdiction of this public security organ, the case shall be filed. Otherwise, the case shall not be filed.
VII. Investigative measures and matters needing attention after the filing of a case by the public security organ
After filing a case, the public security organ shall promptly, comprehensively and objectively collect, retrieve, fix, and examine all kinds of evidence that can prove the guilt or innocence of the alleged offender, the severity or lightness of the crime, and the property involved in the case, and prevent the alleged offender from escaping, destroying evidence, or transferring or concealing the property involved in the case.
Special attention: timely coordination with banks, securities, vehicles, real estate and other competent authorities to comprehensively verify the relevant related accounts and property of alleged offenders illegally obtaining trade secrets transactions.
The public security organs will take the following investigative measures
(1) Interrogation of alleged offenders: The interrogation transcript shall be submitted to the alleged offender for verification. If there are omissions or errors in the record, the alleged offender shall be allowed to supplement or correct it, and fingerprints shall be withheld. After the transcript has been checked by the alleged offender, he shall sign and fingerprint the transcript page by page.
(2) Interviewing witnesses and victims: making a transcript and including it as evidence in the case.
(3) Inspection and inspection: At the scene of the investigation, photos of the scene shall be taken, site maps shall be drawn, and transcripts shall be made, which shall be signed by the persons participating in the investigation and witnesses. For on-site investigations of major cases, audio and video recordings shall be made.
(4) Search: subject to the approval of the person in charge of the public security organ at or above the county level; a search warrant must be presented to the person being searched, and no fewer than two investigators shall perform the search; the person being searched or his family members, neighbors or other witnesses shall be present; a transcript of the search shall be made and signed by the investigators and the person being searched or his family members, neighbors or other witnesses.
(5) Seizure and seizure: A decision on seizure shall be made with the approval of the person in charge of the case handling department; if it is necessary to seize property or documents during on-site investigation or search, it shall be decided by the on-site commander; but if the value of the seized property or documents is high or may seriously affect normal production and operation, a decision on seizure shall be made with the approval of the person in charge of the public security organ at or above the county level.
(6) Obtaining evidence and making a "Notice of Obtaining Evidence"
(7) Inquiry and freezing: 1. Inquiry and freezing of criminal suspects' deposits, remittances, securities transaction settlement funds, futures deposits and other funds, bonds, stocks, fund shares and other securities, as well as equity, policy rights and other investment rights and other assets, and may require relevant units and individuals to cooperate.
2. If it is necessary to freeze the property of the alleged offender, a notice of assistance in freezing the property shall be made with the approval of the person in charge of the public security organ at or above the county level. 3. The time limit for settling deposits, remittances, securities transaction settlement funds, futures deposits and other assets is six months. The maximum time limit for each renewal of freezing shall not exceed six months.
(8) Identification: The number of persons to be identified shall not be less than seven, and the photos of the alleged offender shall not be less than ten persons to be identified.
(9) Appraisal: The investigation organ shall inform the alleged offender and victim of the appraisal conclusion used as evidence. If there is any objection to the appraisal opinion and it complies with the provisions of the law, it may apply for re-appraisal.
(10) Wanted: If a suspect who should be arrested is at large, the public security organ may issue a wanted notice and take effective measures to pursue the case.
VIII. Compulsory measures taken by public security organs after filing a case
(1) Detention: No more than 12 hours.
(2) Detention: up to 37 days.
(3) Arrest: The investigation should be concluded within two months of the arrest decision (in principle).
(4) Release on bail pending trial: Eligible.
(5) Residential surveillance.
Identity determination shall be made for the technical information or business information involved in the case. Before the identity appraisal opinion is issued, in principle, no compulsory measures to restrict personal and property rights shall be taken.
Nine. Three necessary identification and attention issues
Three necessary appraisals in criminal cases of trade secrets: "Non-public appraisal opinion", "Loss assessment report" and "Identity appraisal opinion". Among the three necessary appraisals, the first step is "Non-public appraisal opinion", the second step is "Loss assessment report", and the third step is "Identity appraisal". The appraisal of each link depends on the appraisal results of the previous link, and the three appraisals cannot be carried out at the same time.
For appraisal opinions and evaluation reports,
(1) The appraisal opinions, identity determination opinions and the assessment report that the amount of loss has reached RMB 300,000 yuan provided by the right holder when reporting the case can be used as the basis for filing the case, but when applying for arrest and prosecution, the appraisal report of a state-recognized appraisal agency with appraisal qualifications entrusted by the public security organ shall be submitted as evidence
(2) After identification, if it is determined that the identical secret points do not match the secret points on which the right holder submitted the major loss calculation when reporting the case, the right holder's losses shall be reassessed.
(3) If it is found that the collection of physical evidence or documentary evidence does not comply with legal procedures and may seriously affect judicial fairness, the case handling personnel shall make corrections or make reasonable explanations; if they cannot make corrections or make reasonable explanations, they shall be excluded according to law and shall not be used as a basis for requesting approval for arrest or transfer for review and prosecution.
(4) Re-entrusted appraisal: The investigation organ shall review the appraisal opinions, listen to the opinions of the right holder, alleged offender, and defendant on the appraisal opinions, and may request the appraisal agency to make corresponding explanations; it may send the appraisal opinions to other persons with specialized knowledge for comments. When necessary, ask the appraiser and make a transcript attached to the volume; if it meets the legal conditions for supplementary appraisal or re-appraisal, it shall supplement or re-appraisal.
X. Identification challenges at the judicial level of law enforcement
(1) The identification standards are not uniform
As far as the identification of trade secrets is concerned, there is currently no unified national standard, and there is no industry standard to follow. The identification method mainly adopts "technical methods recognized by most experts in the professional field".
(2) The quality of the appraisal institutions varies widely
The "Notice of the General Office of the Ministry of Justice on Launching the Cleanup and Rectification of Judicial Appraisal Institutions and Appraisals" stipulates that the registration of appraisal institutions and appraisers who are clearly engaged in "outside the four categories" of appraisal business shall be resolutely cancelled according to law.
(3) Lack of rights of the parties in the appraisal process
Filing a trade secret case generally requires the complainant to first commission an appraisal agency to issue a non-public appraisal opinion. Since the information submitted by the complainant cannot be presented to the accused during the investigation stage, without three appraisals, the accused will lose the opportunity to defend, which is not conducive to the protection of the rights of the accused.
(4) Appraisal fee report, the bidding process is complicated
The identification of trade secrets is highly technical and requires a large amount of data analytics. Experts need to invest a lot of time in identification, and the cost of entrusted identification is relatively high. In some cases, the cost of identification is even higher than the loss caused by infringement.
(5) There are few intellectual property appraisal institutions in Shenzhen
There are few intellectual property appraisal institutions in our city, and there are many high-tech enterprises in our city, which involve many intellectual property disputes. However, there are currently only two intellectual property appraisal institutions, Guangdong Public Standard Intellectual Property Judicial Appraisal Institute and Guangdong Anzheng Computer Judicial Appraisal Institute.
About the Author
Wang Qionghua, Lawyer
, Partner Lawyer
Secretary General, Copyright Law Professional Committee of Shenzhen Law Association
Secretary General of Zhiheng Intellectual Property Center, Deputy Director of Copyright Law Professional Committee
Areas of expertise:
intellectual property
Corporate compliance
Corporate legal advisor
Civil and commercial dispute resolution
Publication representative:
"Long'an Lawyers Interpretation of the Civil Code" Contract Compilation
"Internet Law Course"
"Evaluation on Typical Cases of People's Mediation in Futian District, Shenzhen"