侵犯商业秘密罪的立法不足及其完善探析

我国《刑法》对侵犯商业秘密罪的规制,在"商业秘密"概念、罪名体系、构成要件、刑罚配置以及诉讼制度等方面存在缺漏,不便于司法认定,也不符合TRIPs协议中有关规则.因此,笔者建议:制定专门的《商业秘密保护法》、将侵犯商业秘密罪规定为类罪名、取消第三人的过失犯本罪、设立证据转移制度、完善刑罚配置等,以便有效地对商业秘密实施刑事保护.

Lack of Legislation on Crimes of Commercial Secrets Violation and Probing its Completion

Regulations on crimes of commercial secrets violation in Chinese penal code have some defects in many aspects such as the concept of commercial secrets, system of accusation, the constitution of crime, disposal of penalty and lawsuit system and it cannot be convinced in judicature, as well as not matching with regulation of TRIPs agreement. In the thesis, the author suggests that lay down special the law of commercial secrets protection, stipulate the crimes of commercial secrets violation as catalogue accusation, cancel negligence of this crime in third one, establish the system of evidence transferring, complete the disposal of penalty so that we can protect the commercial secrets effectively in practice.