侵犯商业秘密罪疑难问题研究

The Knotty Problems Research into the Crime of Invasion of Business Secret

侵犯商业秘密罪可以由直接故意、间接故意或疏忽大意的过失构成。故意的内容不包括对象对商业秘密的认识。税务官员、律师等特殊身份的人员,即使事先无专门的保密约定,也能构成本罪。该罪是情节犯,不是结果犯,造成重大损失是犯罪成立的标志,不是既遂的标志。该罪与其他秘密犯罪是想像竞合关系,应从一重处断;与盗窃罪是法规竞合关系,应以本罪定罪处罚。

This crime' s subjective aspect should be direct intention, indication, indirect intention or careless and inadvertent negligence. And the intent doesn't include the knowledge whose object is business secret even no special secret agreement in advance. The person with the special identity can still be convicted of this crime. The person who is convicted of this crime is circumstances offense but not consequential offense. So if the act causing enormous losses is the indication of crime tenability but not accomplished offense. This crime and other secret crimes are imagination concurrent and should punish the heavier one. The crime of invasion of business secret and larceny are enact concurrent should be sentence of conviction and criminal punishment.