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With the advancement of Internet, computer and information technologies, a growing number of enterprises store their business data in the form of electronic data. However, in practice, acts of copying or deleting a company's business data by its current or former employees taking advantage of work facilitation remain rampant despite repeated prohibitions. Given the strong deterrent effect of criminal penalties, criminal remedies have become the most stringent means for commercial protection. Different from traditional trade secret infringement acts, trade secret infringements under the Internet environment usually have such characteristics as concealment, complexity, high-tech attribute, large scale of infringement, wide infringement channels and diversified infringement subjects. This has resulted in the long-term unsatisfactory effect of crackdown on the crime of infringing on trade secrets in judicial practice. Under such circumstances, it is of vital importance for right holders to adjust their mindsets to safeguard their legitimate rights and interests. This article makes a brief analysis of the crime of infringing on trade secrets and the crime of illegally obtaining data from computer information systems for the reference of readers.

I. Crime of Infringement of Trade Secrets

1. Constitution of a Crime

### Objective Aspect The actor has objectively committed an act of trade secret infringement, such as disclosing or using trade secrets obtained by improper means, and has caused heavy losses to the right holder. The determination of trade secret infringement from the objective aspect shall satisfy three characteristics: First, the object of the act must be a trade secret; Second, the actor must have committed an act of infringing upon trade secrets; Third, the actor must have caused heavy losses to the right holder.

Object of the Crime: What is protected by the State is the normal and orderly market economic order.

Subjective Aspect: Intent, that is, the actor consciously adopts various means to obtain trade secrets, and negligence shall not constitute this crime. The motive of the actor for committing the crime shall in no way affect the establishment of this crime. In judicial practice, the criminal motives for this crime are mainly manifested as follows: seeking profits, engaging in unfair competition for one's own benefit, defeating competitors in the same industry, seeking retaliation or venting personal grievances, etc.

Subject of Crime: General subject. All natural persons who have reached the age for criminal responsibility and have the capacity for criminal responsibility may constitute this crime, and entities may also be the subject of this crime. In China, the subject elements of the crime of trade secret infringement usually include: (1) Internal personnel of the company, such as shareholders, senior management personnel, enterprise technical personnel, transferred, reassigned, resigned and retired personnel, etc.; (2) External entrusted personnel of the company, such as lawyers, accountants, patent agents, etc.; (3) External supervision personnel of the company, such as auditors, tax officials, personnel of competent administrative authorities, etc.; (4) Relevant entities and directly responsible persons who, in the course of daily business activities, disclose, use or allow others to use the trade secrets in their possession pursuant to contracts or the requirements of the right holder on keeping trade secrets confidential.

2. Difficulties in Handling Cases of the Crime of Infringement of Trade Secrets

(1) Issues concerning the determination of trade secrets

Article 219 of the Criminal Law Amendment (XI) deletes the definition of "trade secret". At present, China has not yet enacted the *Trade Secret Protection Law*, so the definition of trade secret stipulated in the *Anti-Unfair Competition Law* shall be applied by reference: A trade secret refers to commercial information such as technical information and business information that is not known to the public, has commercial value, and for which the right holder has taken corresponding confidentiality measures. Specifically, it covers three constituent elements: first, secrecy, which means the information is not generally known to and readily accessible by relevant personnel in the relevant field; second, value, which means the information has actual or potential commercial value and can bring competitive advantages to the right holder; third, confidentiality, which means the right holder has taken reasonable confidentiality measures to prevent the disclosure of the trade secret.

(2) Issues concerning the determination of serious circumstances

In judicial practice, in cases where illegal gains are difficult to ascertain, the common practice of judicial authorities is to make determinations based on the *Forensic Appraisal Opinion* on secret points and the *Forensic Accounting Appraisal Report* on losses issued by qualified forensic appraisal institutions. However, multiple issues arise under such circumstances, including whether the appraisal methods and reference bases adopted in the appraisal opinions comply with the requirements of industry technical appraisal specifications, and whether there is relevance between the forensic appraisal opinion on secret points and the forensic accounting appraisal opinion on losses, as well as between the aforesaid appraisal opinions and the facts to be proved in the case. These issues may lead to the practice of replacing trial with appraisal, which improperly expands or narrows the determination of losses. In addition, whether there is a causal relationship between the causes of bankruptcy and closure and the relevant actor also constitutes a key difficulty in adjudication.

For the above reasons, in practice, where it cannot be proven that the information involved in the case meets the "three attributes" requirement for trade secrets, or the ascertained amount of losses or illegal gains fails to reach the prosecution threshold of RMB 300,000, the criminal liability of the criminal suspects cannot be pursued, or the case shall be dismissed. According to the *White Paper on Judicial Protection of Intellectual Property Rights by Chinese Courts* covering the period from 2015 to 2020 issued by the Supreme People's Court, the number of concluded first-instance cases concerning the crime of trade secret infringement handled by local people's courts at all levels across China remained around 40 each year, with only 26 cases registered in 2017. The application rate of the crime of trade secret infringement nationwide only accounts for 0.6% to 0.8% of all criminal cases involving intellectual property right infringement, and there is a prevalent problem of low case filing rate at the investigation stage.

II. Crime of Illegally Obtaining Data from Computer Information Systems

1. Constitution of a Crime

Objective Aspect: The perpetrator commits the act of illegally intruding into ordinary computers not involved in the sectors of state affairs, national defense construction and cutting-edge science and technology, and obtaining specified data therefrom. Such act objectively violates the state provisions, which include but are not limited to the *Decision of the Standing Committee of the National People's Congress on Preserving Internet Security*, the *Regulations on Security Protection of Computer Information Systems*, the *Provisions on the Administration of Secrecy for International Networking of Computer Information Systems*, and the *Measures for the Administration of Security Protection of International Networking of Computer Information Networks* issued by the Ministry of Public Security, among others.

Object of the Crime: The security of computer information systems. The target of the crime of illegally obtaining data from computer information systems is strictly limited to data stored, processed or transmitted in in-service computer information systems. Computer data stored in devices other than computers such as mobile hard disks do not fall within the protection scope of this crime. The provision prescribing this crime is the catch-all supplementary clause of Article 285 of the Criminal Law of China, which expands the protection scope of computer system security.

Subjective Aspect: Intent, that is, the actor clearly knows that the act he or she commits may infringe upon the legal interests of others, yet still wishes for the occurrence of such consequence.

Subject of Crime: This crime can only be committed by natural persons, and units cannot constitute this crime. In judicial practice, criminal suspects of this crime are generally required to be proficient in computer and network operations and possess certain technical skills.

2. Issues concerning the determination of intrusion and other related acts

III. Comparison of Accusations

1. The infringed legal interests are different.

As mentioned above, the legal interest protected by the crime of trade secret infringement is the market economic order, while the legal interest principally protected by the crime of illegally obtaining data from computer information systems is the security of computer information systems, and no requirement is imposed on the nature of the data concerned. Therefore, whether the relevant data constitutes a trade secret does not affect the determination that it falls into the category of computer information system data.

2. Different monetary thresholds for criminal conviction

With respect to the monetary threshold for criminal conviction, as opposed to the RMB 300,000 threshold (calculated in terms of either losses incurred or illegal gains obtained) for the crime of trade secret infringement, a conviction for the crime of illegally obtaining data from computer information systems may be rendered where the illegal gains derived amount to no less than RMB 5,000 or the economic losses caused are no less than RMB 10,000, which drastically lowers the threshold for victims to seek criminal remedies.

3. The difficulty in determining the amount of loss varies.

Interpretation (III) on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Infringement of Intellectual Property Rights sets forth multiple methods for determining the amount of loss or the amount of illegal gains for the crime of trade secret infringement, but many disputes still exist in its specific application. In judicial practice, usually after the computer information system of the victimized company receives an alert, the company shall engage a cybersecurity service provider to trace the attack, identify vulnerabilities, conduct data recovery and perform other relevant work. Under such circumstances, proving and calculating the economic losses caused to the company is obviously easier than that in cases involving the crime of trade secret infringement.

4. Difference in Statutory Nature

5. Different competent jurisdictional authorities

The crime of infringement of trade secrets is a type of intellectual property rights infringement crime, which falls under the jurisdiction of the economic crime investigation departments of public security organs. Crimes such as the crime of illegally obtaining data from computer information systems are under the jurisdiction of the cyber security departments of public security organs. Therefore, right holders shall also take into account the case-handling characteristics of the two departments when selecting remedy channels, so as to achieve the objective of protecting the rights and interests of the company at the minimum cost.