侵犯商业秘密罪“情节严重”的规范认定

The Normative Determination of “Aggravating Circumstances” of the Crime of Infringing on Trade Secrets

摘要: 刑法修正案(十一)将“重大损失”改为“情节严重”，即侵犯商业秘密罪由结果犯变为情节犯，因此“情节严重”代替“重大损失”成为成立侵犯商业秘密罪的新的重要入罪标准。这一立法变动，既意味着本罪的入罪门槛进一步降低，也体现了立法者从外部构建商业秘密市场竞争秩序的规范目的。同时也使得危害性巨大但经济损失不大或难以计算认定的侵犯商业秘密行为难以认定的问题得以解决。但是“情节严重”的适用标准仍然需要司法解释进一步明晰，否则将会造成该罪适用范围的模糊不定。

Abstract: Amendment (XI) to the Criminal Law changed “significant loss” to “aggravating circumstances”, i.e., the crime of infringing on trade secrets was changed from a crime of result to a crime of circumstance, and therefore “aggravating circumstances” instead of “significant loss” has become a new important criterion for the establishment of the crime of infringing on trade secrets. Therefore, “serious circumstances” instead of “significant loss” becomes the new important incrimination standard for the establishment of the crime of infringing trade secrets. This legislative change means that the crime of the incrimination threshold is further reduced, but also reflects the legislator from the outside to build trade secrets market competition order of the normative purpose. At the same time also makes the harm is huge but the economic loss is not big or difficult to calculate the recognition of infringement of trade secrets is difficult to identify the problem can be solved. But the “circumstances are serious” application standard still need judicial interpretation further clarification, otherwise it will cause the crime of the scope of application of the vague and uncertain.