论侵犯商业秘密罪“重大损失”的确定

摘要

侵犯商业秘密罪“重大损失”的认定是司法实践中的一个难点。侵犯商业秘密罪的“重大损失”既包括可以计算的直接经济损失和间接经济损失，也包括不可计算的损失，如破产、权利人死亡等。直接经济损失是指由犯罪行为直接造成的可以计算的现有财产减少的实际价值和不应有经济性支出的实际价值。间接经济损失是指由侵犯商业秘密犯罪行为引起的权利人因其竞争优势被削弱或被摊薄甚至丧失而造成的应得而未得到的合理预期收入，以及为挽回所造成的损失所支付的合理开支、费用。不可计算损失包括造成商业秘密权利人破产或其他重大损失的情形。%The“gross losses”in crime of breaching business secrets is a difficulty in juridical practice.It includes both calcu-lable direct economic loss and indirect economic loss and it also includes the incalculable loss,such as holder of the bankruptcy, death,etc.Direct economic losses refer to the actual calculable value of the reduction of the existing property which is directly caused by criminal behavior and the actual value of the undue economic expenses.Indirect economic losses refer to the reasona-ble expected income that is caused by the aggressive criminal behavior which trade secret.Because of the criminal behavior, right holders’competitive advantage is weakened or diluted or even at a loss.They failed to get reasonable expected income they should have.From another point of view,indirect economic losses also refer to the reasonable expenses that pay for the damage caused by criminal behavior.Incalculable losses refer to these situations that cause the bankruptcy or heavy losses of business secret holders.