營業秘密與刑法規制

Trade Secrets and Criminal Regulation

我國營業秘密的保護法益討論，學者向來採取複數的保護法益見解，包括了個人法益下的隱私法益、財產法益、個人整體財產法益、社會法益下的市場競爭秩序，以及國家安全法益等觀點，但前述見解卻未能統整，致使營業秘密的保護法益迄今仍舊未有定論，而相關的見解都接受了經濟刑法的重要特色：多為附屬刑法設計、大多設計為抽象危險犯，以及單一構成要件同時會保護複數法益的三大特徵。不過對於這種派生自德國的經濟刑法理論，本文則採取了學界的相對少數說，並進而主張，即便相關客體有多重保護法益的可能性，但只要所涉法益能夠在實證法中找到相對應的規定，同時能夠達到充分評價的目的時，便應該透過相關機制處理，而關於學者所提出的各種法益，本文都認為有現行法足資處理，而唯一難以處理，而且也是最適當的詮釋途徑，就是市場競爭秩序，換言之，本文在保護法益上認為侵害營業秘密罪的保護法益僅有一種，就是社會法益概念下的市場競爭秩序。
本文在確立了保護法益的定性後，接續探討二則重要的實務難題，首先是還原工程會否影響秘密性的判斷。對此實務見解則出現歧異，但本文觀點同智財法院與德國學說之見解，認為若使用高難度還原工程技術才能得知的資訊，仍應保有其秘密性，反之則否。另外，關於不正方法的討論中，記憶抗辯是一個較難以處理的課題，學者之間的見解也各有不同，本文見解則認為，離職員工的記憶屬於其人格權的一部分，記憶無法輕易透過指令或是約定就逕行刪去，也因此，與其嘗試論證記憶營業秘密可能是一種不正方法，進而要動用刑罰處理，似不如透過離職後的禁止競業約款處理、或是加強公司內部的風險控管機制，或許會是更加貼近實務的處理方式。
本文的另一個研究取徑，則是法學實證研究，蒐集自2013修法起8年之間，全國所有地方法院的判決結果。研究結果發現，在產業類型上反而是製造業為最多、其次才是為晶圓、半導體、光電產業，而被害人的規模有過半數是非上市櫃公司。依照法院的見解，被告行為影響整體產業的國際競爭力的情況仍是相對少數，僅有21.6%，其餘78.4%仍是影響單一法人的未來預期獲利。判決結果部分，無罪判決、有罪判決、公訴不受理判決等三種類型的比例相當接近。探究無罪判決的成因可以發現有97.4%的被告其獲得無罪判決的原因，是系爭案件的爭點「不構成營業秘密」，其餘2.6%則是因為無不法意圖，比例差異懸殊。
迴歸分析的重要結果顯示：若案件涉及中國的競業活動時，有較高的機率被判有罪；而若法院評價本案將影響整體產業競爭力時，被判有罪的機率也會較高。相較於基層員工，告訴人對被告為主管級的受雇者撤回告訴的機率較小。最後，當被告人數多於2人時，該案獲判為公訴不受理的機率，也較被告人數小於、等於2人時要高。整體來說，前述資訊都隱隱然地顯示當前營業秘密的訴訟現況中，告訴人追求的似乎不是國家刑罰權的發動。
故本文綜合刑法釋義學的討論結果與法學實證研究的分析，對於當前營業秘密的刑法規制提出具體的修法建議：首先在實體法部分，本文建議營業秘密法第13條之1應該加入「足生損害於市場競爭秩序」為要件，維持抽象危險犯的設計，但添加適性犯的概念，使得刑罰權的發動得以有所節制。而在訴訟層面的問題上，本文則主張偵查保密令的對象應擴及到承辦案件的司法人員，以完備在偵辦涉及國家安全等級的營業秘密案件的保密措施。最後，由於本文認為侵害營業秘密之保護法益為社會法益中的市場競爭秩序，而參照我國之相關規定，均未採取告訴乃論制，況且秘密持有人也僅能被認為是間接被害人，因此不具備告訴權，在此前提下，本條規定即有刪除之必要。

In Taiwan, scholars have usually rendered opinions featuring pluralism while making discussions on the legally protected interests in relation to trade secrets. These opinions have included privacy, property and personal integrated property that fall into the category of individual legal interests as well as order of market competition and national security that fall into the category of social legal interests. However, no agreement has been reached among the scholars based on their diverse opinions. Until now such diversity has led to unsettled conclusions of the legally protected interests in connection with trade secrets. What the scholars proposed somehow showed the acceptance of the three important characteristics of economic criminal law（Wirtschaftsstrafrecht）: mostly designed in the form of ancillary criminal law（Nebenstrafrecht）, crimes constituted by abstract endangerment of legal interests, and a single legal element that simultaneously protects the pluralism of legal interests. As opposed to the theory of economic criminal law originated from Germany, this study adopted a viewpoint proposed by a relative minority in the academic circle. It further contended that even if there was a possibility for an object to enjoy the pluralism of legally protected interests, the existing legal mechanisms should apply as long as it is able to find corresponding regulations in positive law for the courts to make adequate judgements over the legal interests in question. In this study, it was suggested that the existing laws were adequate to apply while dealing with the various types of legal interests proposed by the scholars. However, the order of market competition was the most difficult issue to clarify while it was the best path for making competent interpretation of crimes concerning trade secrets. In other words, it was advocated that the order of market competition, which falls into the concept of social legal interests, could be considered as the only legal interest to be protected when it came to the infringement of trade secrets.
Following the qualitative establishment of the legally protected interests, this study continued to explore two major dilemmas in practices. The first dilemma was to clarify whether reverse engineering would impose effects on the determination of secrecy. Differences in the opinions emerged regarding this practice. The perspective held in this study was in line with those presented by the intellectual property courts and the opinions rendered based on German theories, which suggested that secrecy remained intact when the information could only be attained via the application of highly difficult reverse engineering skills. Otherwise, secrecy was considered being infringed. In addition, the discussions on improper or wrongful means revealed that memory defense was an argument tougher to be clarified. The opinions proposed by the scholars varied from each other. The current study considered that memory of former employees was a part of moral right. While an individual’s memory could not be directly deleted merely by a command or by agreement, it would be more pragmatic to impose non-compete clauses on the employees after their resignation or strengthen a company’s internal risk control mechanism than to evidence that memory of trade secrets could possibly be an improper or wrongful means for resulting in the application of the criminal law.
Empirical legal research served as another approach to carry out this study. The verdicts given by all district courts nationwide from 2013, during which an amendment was made, throughout the following eight years were collected. The findings demonstrated that most infringements of trade secrets were found in the manufacturing industry followed by the wafer industry, semi-conductor industry and optoelectronic industry. Meanwhile, more than half of the victims were not listed companies or OTC companies. The court opinions showed that the defendants’behavior imposing influence on the international competitiveness of an overall industry was relatively minor, merely accounting for 21.6%, while 78.4% of the victims were reported experiencing adverse impact on a single legal person’s anticipated profits. Among the collected verdicts, the ratios of the decisions respectively indicating“not guilty”,“guilty”or“case not entertained due to public prosecution already initiated”were relatively close. Further exploration of the reasons for the decisions indicating“not guilty”found that 97.4% of the defendants of the cases were accused of some issues that“did not constitute trade secrets”and the rest 2.6% were judged“without illegal intention”. The considerable disparity was thus shown between these two figures.
The regression analysis in this study came up with the following crucial findings. The cases involved in the competitive activities in China received a higher chance of being sentenced guilty. The cases with court judgment pointing out certain influence on overall competitiveness of an industry also experienced a higher chance of being sentenced guilty. Compared with the employees at a lower level, the defendants who were superiors in a company would face a smaller chance for the complainants to withdraw their complaints. Finally, the cases with more than two defendants received a higher chance to be sentenced“case not entertained due to public prosecution already initiated”, if compared with the those with fewer than or equal to two defendants. In general, the aforementioned information implicitly illustrated that the current conditions of filing lawsuits concerning trade secrets seemed to signal a posture of deliberate manipulation of applicable criminal provisions to achieve expected court results.
Therefore, based on the findings from the discussions on criminal law hermeneutics as well as the analytical results from the empirical legal research, this study proposed the following concrete suggestions for making an amendment to the current Trade Secrets Act. First, regarding the substantial law, it was suggested that the wording“being adequate to jeopardize the order of market competition”should be added as a legal element in Article 13-1 of the Trade Secrets Act. The concept of“crimes constituted by abstract endangerment of legal interests”（Abstraktes Gefährdungsdelikt）shall remain with the addition of the concept of the crime of being adequate to render（Eignungsdelikt）.With such amendment, the exercise of penal power can be constrained. From the perspective of filing a complaint, the author advocated that the recipients of investigation confidentiality protective order should be extended to the judicial officers in charge of the related trade secrets cases so as to ensure flawless confidentiality measures taken for these cases when the investigations involved national security. Finally, the design considering infringement of trade secrets as a crime of“no trial without complaint”（Antragsdelikt）has been criticized by the practitioners. This study defined this crime as an infringement of the order of market competition under social legal interest. Accordingly, not a direct victim existed in terms of social legal interest. Thus, it makes sense that the said provision concerning“no trial without complaint”should be deleted.