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People's Procuratorate of Xi'an Municipality v. Pei Guoliang (Case on Infringement upon Commercial Secret)
西安市人民检察院诉裴国良侵犯商业秘密案
【法宝引证码】

People’s Procuratorate of Xi’an Municipality v. Pei Guoliang (Case on Infringement upon Commercial Secret)
(Case on Infringement upon Commercial Secret)
西安市人民检察院诉裴国良侵犯商业秘密案

People's Procuratorate of Xi'an Municipality v. Pei Guoliang
(Case on Infringement upon Commercial Secret)

 

西安市人民检察院诉裴国良侵犯商业秘密案

 【裁判摘要】
 一、根据最高人民法院《关于执行<中华人民共和国刑事诉讼法>若干问题的解释》第八十六条第(五)项的规定,行为人窃取他人技术秘密供自己所在的公司使用,从而给技术秘密权利人造成特别严重后果的,在追究行为人侵犯商业秘密罪的刑事责任时,可以根据附带民事诉讼原告人的请求,将行为人所在公司列为附带民事诉讼被告人一并追究侵权的民事赔偿责任。
 二、根据最高人民法院《关于刑事附带民事诉讼范围问题的规定》第二条的规定,权利人因技术秘密被窃取而遭受的物质损失,包括已经遭受的实际损失和必然遭受的市场份额被削减、竞争力减弱等损失。侵权人利用窃取的技术秘密履行与他人签订的技术合同,从而谋取巨额利润的,应当将侵权人在侵权期间因侵权所获得的利润额确定为给技术秘密权利人的赔偿额。只能认定侵权人签订的合同总金额,无法确定侵权人在侵权期间因侵权所获得的利润的,可以按照该行业平均利润标准计算侵权人所获得的利润。
BASIC FACTS 
Prosecuting Organ: People's Procuratorate of Xi'an Municipality, Shaanxi Province. 公诉机关:陕西省西安市人民检察院。
Plaintiff in the incidental civil lawsuit: Xi'an Heavy Machinery Research Institute, located at Xinjiamiao, Weiyang District, Xi'an, Shaanxi. 附带民事诉讼原告人:西安重型机械研究所,住所地:陕西省西安市未央区辛家庙。
Legal Representative: Xie Donggang. 法定代表人:谢东钢。
Defendant: Pei Guoliang, male, 44, former senior engineer of Xi'an Heavy Machinery Research Institute, arrested on October 8, 2004, deputy general engineer of CCTEC Engineering Joint Stock Company Limited before the arrest. 被告人:裴国良,男,44岁,原系西安重型机械研究所高级工程师,2004年10月8日被逮捕,捕前系中冶连铸技术工程股份有限公司副总工程师。
Defendant in the incidental civil lawsuit: CCTEC Engineering Joint Stock Company Limited, located at Metallurgy Avenue, Qingshan District, Wuhan, Hubei Province. 附带民事诉讼被告人:中冶连铸技术工程股份有限公司,住所地:湖北省武汉市青山区冶金大道。
Legal Representative: Li Pingfan. 法定代表人:李平凡。
The People's Procuratorate of Xi'an Municipality, Shaanxi Province (hereinafter referred to as Xi'an Procuratorate) lodged a prosecution with the Intermediate People's Court of Xi'an Municipality, Shaanxi Province (hereinafter referred to as Xi'an Intermediate Court) against Pei Guoliang (Pei hereafter) for the crime of infringing upon commercial secret. Xi'an Heavy Machinery Research Institute (hereinafter referred to as XHMRI) meanwhile brought an incidental civil lawsuit against Pei and CCTEC Engineering Joint Stock Company Limited (hereinafter referred to as CCTEC). 陕西省西安市人民检察院以被告人裴国良犯侵犯商业秘密罪,向陕西省西安市中级人民法院提起公诉,西安重型机械研究所(以下简称西安重研所)同时对裴国良、中冶连铸技术工程股份有限公司(以下简称中冶公司)提起附带民事诉讼。
The bill of indictment describes: After undertaking the design of the main equipment of the No. 2 slab continuous casting machine (hereinafter referred to as LY Steel Casting Machine) of Liaoning Lingyuan Iron & Steel Co., Ltd. (hereinafter referred to as LY Steel Company), XHMRI completed the design independently, and formed a set of “drawings of the main equipment of LY Steel's No. 2 150×750mm Slab Continuous Casting Machine” (hereinafter referred to as drawings of the main equipment of LY Steel Casting Machine). XHMRI considered the drawings as his own technical secret. Pei made a copy of the electronic text of the drawings of the main equipment of LY Steel Casting Machine by taking advantage of his position as a senior engineer of XHMRI. After Pei was employed by CCTEC to serve as a deputy general engineer, he input the electronic text into CCTEC's LAN for CCTEC's use at the time of designing “135×750mm Slab Continuous Casting Machine” for Sichuan Chuan Wei Group Company Limited (hereinafter referred to as CW Company) and designing “135×800mm Slab Continuous Casting Machine” for Shandong Taishan Iron & Steel Company Limited (hereinafter referred to as Taishan Company). Pei's acts caused at least 1.48 million Yuan of economic losses to XHMRI, have violated Article 219 of the “Criminal Law of the People's Republic of China” (hereinafter referred to as the Criminal Law), and constituted the crime of infringing upon commercial secret. Xi'an Procuratorate pleaded the court to sentence according to the law. 起诉书指控:西安重研所承接辽宁凌源钢铁有限公司(以下简称凌钢公司)的凌钢2号板坯连铸机(以下简称凌钢连铸机)主体设备的设计工作后,自主完成设计,形成一套“凌钢二号150×750mm板坯连铸机主体设备图纸”(以下简称凌钢连铸机主设备图纸),西安重研所视之为自己的技术秘密。被告人裴国良利用在西安重研所担任高级工程师的工作便利,将凌钢连铸机主设备图纸的电子版本拷贝下来。裴国良应聘到中冶公司担任副总工程师后,将该电子版本输入到中冶公司局域网,供中冶公司为四川省川威集团有限公司(以下简称川威公司)设计“135×750mm二机二流板坯连铸机”、为山东泰山钢铁有限公司(以下简称泰山公司)设计“135×800mm二机二流板坯连铸机”时使用。裴国良的行为给西安重研所造成至少148万元的经济损失,已触犯《中华人民共和国刑法》(以下简称刑法)第二百一十九条规定,构成侵犯商业秘密罪,请依法判处。
Xi'an Procuratorate submitted the following items of evidence: 公诉机关提交以下证据:
1. “Provisions of Xi'an Heavy Machinery Research Institute on the Protection of Intellectual Properties”, and labor contracts concluded between XHMRI and its employees, which prove that XHMRI made confidentiality rules on its technical secrets, and any employee shall bear the confidentiality obligation under the contract. Since Pei also concluded a labor contract with XHMRI, he shall bear confidentiality obligation for XHMRI's technical secrets; 1.《西安重型机械研究所保护知识产权的规定》、西安重研所与在职人员签订的劳动合同,用以证明西安重研所对该所的技术秘密制定了保密制度,凡该所在职人员按合同都应当承担保密义务,被告人裴国良也与西安重研所签订过劳动合同,对西安重研所的技术秘密负有保密义务;
2. the agreement between XHMRI and LY Steel Company, the registration form on LY Steel Company's drawings, testimony of Chen Zhiqin (chief of LY Steel Company's Processing Equipment Division), and the transcripts drawn by the public security organ, which prove that XHMRI shall design the main equipment of the casting machine for LY Steel Company under the agreement, with the design fee at 1.48 million Yuan; LY Steel Company shall bear the confidentiality obligation for the drawings designed by XHMRI; XHMRI has made the design drawings into a CD and handed it to LY Steel Company pursuant to the agreement after completing the design task; the CD received by LY Steel Company has been read by no one, and has now been drawn by the public security organ; 2.西安重研所与凌钢公司签订的协议、凌钢公司图纸描制登记表、凌钢公司工艺设备科科长陈志芹的证人证言、公安机关的提取笔录,用以证明西安重研所按协议为凌钢公司设计连铸机主设备,设计费用是148万元;对西安重研所设计的图纸,凌钢公司负有保密义务;西安重研所完成设计任务后,已经按协议将设计图纸制成光盘交给凌钢公司;凌钢公司收到的该光盘至今无人借阅,现已由公安机关提取;
3. minutes of the LY Steel Casting Machine Technology Design Examination Conference convened by LY Steel Company, and testimonials of LY Steel Company's converter steel-making plant and accounting department, which prove that at the conference taken part in by the staff and experts of LY Steel Company, XHMRI and Ma'anshan Iron & Steel Design & Research Institute (hereinafter referred to as Magang Design Institute), the main equipment of the casting machine designed by XHMRI for LY Steel Company was confirmed as practical and feasible; and after having been put into production and operation for 22 months, the performance of the casting machine and all economic indices have exceeded the designed capacity; 3.凌钢公司召开的凌钢连铸机技术设计审查会记录、凌钢公司转炉炼钢厂和公司财务部的证明,用以证明在凌钢公司、西安重研所、马鞍山钢铁设计研究院(以下简称马钢设计院)三方人员和有关专家参加的会议上,西安重研所为凌钢公司设计的连铸机主设备被确认实用可行;该连铸机经过22个月的生产运行,性能及各项经济指标已超过设计能力;
4. the No. 1 [2005] judicial authentication letter issued by Intellectual Property Judicial Authentication Institute of Xi'an Jiaotong University (hereinafter referred to as Authentication Institute of XJTU), whose main contents are as follows: the technical solution on the main equipment of LY Steel Casting Machine is composed of some recognized technologies and 5 certain technical secrets, neither the composition program nor the 5 certain technologies were known by the public by December 30, 2002, and both meet the statutory conditions of technical secrets which belong to commercial secrets; 4.西安交通大学知识产权司法鉴定所 (以下简称西交大鉴定所)出具的西交司鉴所[2005]知鉴字第1号司法鉴定书,主要内容为:凌钢连铸机主设备技术方案是由部分公知技术和5项特定技术秘密组成,其组成方案和5项特定技术在2002年12月30日前具有不为公众知悉的特征,符合商业秘密中技术秘密的法定条件;
5. the “Memorandum on Handover between Party B and Party C of the Design Documents on Alteration of LY Steel's No. 2 Slab Continuous Casting Machine” concluded between XHMRI and Magang Design Institute, and the fax sent by Zhou Xiaoqing, principal technician of Magang Design Institute, to LY Steel Company, which prove that as required by the agreement, XHMRI shall take charge of designing the main equipment of LY Steel Casting Machine, Magang Design Institute shall take charge of designing the overall layout of LY Steel Casting Machine, and Magang Design Institute never got the drawings of the main equipment of LY Steel Casting Machine which were designed by XHMRI; 5.西安重研所与马钢设计院签订的“凌钢二号板坯连铸机工程修改设计乙丙双方资料交付备忘录”、马钢设计院主要技术人员周晓青给凌钢公司的传真件,用以证明根据协议,西安重研所负责凌钢连铸机主设备的设计工作,马钢设计院负责凌钢连铸机总体布置的设计工作,马钢设计院从未得到过西安重研所设计的凌钢连铸机主设备图纸;
6. the contracts concluded by CCTEC separately with CW Company and Taishan Company, which prove that CCTEC designed and manufactured the slab continuous casting machine for CW Company and Taishan Company, and received design fee and manufacturing fee under the two contracts; 6.中冶公司与川威公司、泰山公司签订的合同,用以证明中冶公司为川威公司、泰山公司设计、制造了板坯连铸机,从这两个合同中得到了设计、制造费用;
7. the materials on XHMRI's case reporting, the design drawings drawn by the public security organ from Xi'an Metallurgy Manufacturing Company Limited (hereinafter referred to as XMM Company), and the identification transcripts of XHMRI's designers, which prove that XHMRI's employees found in XMM Company that the XHMRI's design drawings on the main equipment of LY Steel Casting Machine were used on the slab continuous casting machine manufactured by XMM Company for CW Company and Taishan Company upon entrustment of CCTEC; after that, XHMRI successively got evidence through its business from Dalian Heavy Industry Company and Shanghai Luqiao Company, etc., which proves that CCTEC used many of XHMRI's drawings when designing and manufacturing the slab continuous casting machine, and XHMRI then reported to the police; after receiving the report, the public security organ drew from XMM Company the design drawings delivered by CCTEC; it was found from the identification of XHMRI's designers that such drawings were exactly the design drawings for XHMRI to alter the main equipment of LY Steel Casting Machine; 7.西安重研所的报案材料、公安机关从西安冶金制造有限公司(以下简称西冶公司)提取的设计图纸、西安重研所设计人员的辨认笔录,用以证明西安重研所工作人员在西冶公司发现该公司接受中冶公司委托为川威公司、泰山公司制造的板坯连铸机,使用了西安重研所设计凌钢连铸机主设备时的图纸;西安重研所随即通过业务关系,又陆续从大连重工、上海路桥等公司获得证据,证实中冶公司正在设计、制造的板坯连铸机大量使用了西安重研所的图纸,遂报案;公安机关接到报案后,从西冶公司提取了中冶公司交付的设计图纸;经西安重研所设计人员辨认,公安机关提取的图纸确实是西安重研所改造凌钢连铸机主设备时的设计图纸;
8. testimonies of CCTEC's employees including Xiong Huaihao, Zhu Xuejie, Wang Lijun, Ding Jizhou, Li Yongjun and Chen Youxin who took charge of or took part in the project design for CW Company and Taishan Company, which prove that CW Company's project was under CCTEC's contract on the first slab continuous casting machine, and the witnesses used XHMRI's design drawings on CCTEC's LAN as reference when taking part in the project design; some designers designed the slab continuous casting machine for the first time, but did not know how to calculate the data, so they had to alter some of the data on XHMRI's original drawings, or combined XHMRI's several drawings into a big drawing; after undertaking Taishan Company's project, CCTEC only photocopied a set of drawings on CW Company's project, and then completed the design of Taishan Company's project; 8.中冶公司负责和参与川威公司、泰山公司项目设计的熊怀豪、朱学杰、王莉君、丁继周、李永军、陈又新等证人的证言,用以证明川威公司项目是中冶公司承接的第一个板坯连铸机合同,证人在参与该项目的设计过程中,参考了中冶公司局域网上提供的西安重研所设计图纸;有些设计人员是第一次接触板坯连铸机设计,不会计算数据,因此只能将西安重研所原图上的数据进行部分改动,或者将西安重研所的几张图纸拼到一起变成一张大图;中冶公司承接泰山公司项目后,只是将川威公司项目的图纸复印一套,完成泰山公司项目的设计工作;
9. No. 014 (2003) judicial authentication letter of Huake Intellectual Property Judicial Authentication Center of China Scientific and Technological Law Society (hereinafter referred to as Huake Authentication Center), whose main contents are: after comparison between XHMRI's drawings of the main equipment of LY Steel Casting Machine and the drawings on CCTEC's design of the slab continuous casting machine for Taishan Company, it can be found that 52.2% of the drawings are completely identical, 35.8% of the drawings have identical structure but minor changes with the indicated size, 12% of the drawings have minor changes with both the structure and the size, and no drawings are different in respect of both structure and size; since the two slab continuous casting machines have different sizes, there will be formal differences between the single-channel production line and the double-channel one; consequently, some drawings have the differences mainly in respect of the quantity of cooling water pipes and gas pipes of some parts and components, the layout and pattern of pipe adapters, some parts of non-key structures, and numerical value of the sizes of some drawings; in terms of the structures and functions manifested in the assembly drawings and the parts drawing, there are no essential differences between them; 9.中国科学技术法学会华科知识产权司法鉴定中心(以下简称华科鉴定中心)的 (2003)知鉴字第014号司法鉴定书,主要内容为:将西安重研所的凌钢连铸机主设备图纸与中冶公司为泰山公司设计的板坯连铸机图纸进行比对,其中完全相同的图纸占52.2%,结构相同、标注尺寸有小变化的图纸占35.8%,结构和尺寸都有小变化的图纸占12%,不相同的图纸没有;由于两个板坯连铸机规格不同,生产线存在单流和双流的形式差别,因此部分图纸存在差异,但是差异主要表现在部分零部件的冷却水管、气管数量不一样、管接头分布和样式不同、部分非关键结构的零件有所变化,部分图纸的尺寸数值有所改变,从装配图和零件图所表现的结构功能看,两者无本质区别;
10. Pei's confession, whose main contents are as follows: One day in 2001, he found a CD of the drawings of the main equipment of LY Steel Casting Machine in the notebook computer he was using, and copied the drawings into his own computer, and later copied them into a movable hard disk; in September 2002, CCTEC and CW Company concluded a contract on design and manufacturing of slab continuous casting machine which is basically the same as LY Steel Casting Machine, and he uploaded XHMRI's drawings of the main equipment of LY Steel Casting Machine onto CCTEC's LAN for reference; it was later found that there are XHMRI's serial numbers on some drawings designed by CCTEC's designers. 10.被告人裴国良的供述,主要内容为:2001年一天,他在自己使用的笔记本电脑中发现一张光盘,上面有凌钢连铸机主设备图纸,就将图纸拷贝到自己的电脑上,后又复制到一个移动硬盘中;2002年9月,中冶公司与川威公司签订板坯连铸机设计制造合同,由于该连铸机与凌钢连铸机基本相同,他就将西安重研所的凌钢连铸机主设备图纸上传到中冶公司局域网内作为参考,但后来发现,在中冶公司有些设计人员设计的图纸上,竟然还有西安重研所的图号。
XHMRI alleged: At the very beginning, Magang Design Institute was entrusted to design LY Steel Company's No. 2 slab continuous casting machine, but Magang Design Institute's design program cannot meet LY Steel Company's requirements. XHMRI was then entrusted to alter the main equipment of the casting machine designed by Magang Design Institute, and Magang Design Institute still took charge of the overall design of LY Steel Casting Machine. In 2000, XHMRI completed the task of designing the main equipment of LY Steel Casting Machine through independent research by making use of several years of scientific and technological achievements and spending much time and many properties. After the experts' argumentation, XHMRI's design was considered to be practicable and feasible, and created huge amount of benefits for LY Steel Company after the production was carried out. The facts prove that, XHMRI's design has its uniqueness when compared with Magang Design Institute's original design. In the process of the design, more than a thousand drawings were formed, which also became XHMRI's technical secrets unknown to the public. In the first half of 2003, XHMRI's employees found in XMM Company that CCTEC made use of XHMRI's drawings of the main equipment of LY Steel Casting Machine to process and manufacture slab continuous casting machines for CW Company and Taishan Company. Later, they found from investigation that it was Pei, former senior engineer of XHMRI, who provided CCTEC with the drawings. Since Pei did not participate in the design of the main equipment of LY Steel Casting Machine when he worked in XHMRI, he had to get the drawings by theft. By making use of the drawings, CCTEC concluded contracts with CW Company and Taishan Company, with the total price exceeding 140 million Yuan, and thus made huge profits. In the contracts concluded by CCTEC separately with CW Company and Taishan Company, CW Company and Taishan Company are required to bear confidentiality obligation for these drawings. The facts are enough to prove that the drawings carry technical secrets unknown to the public. Pei and CCTEC infringed upon XHMRI's technical secrets, and caused huge amount of economic losses to XHMRI. XHMRI pleaded the court to, when investigating Pei's criminal liabilities, order Pei and CCTEC to jointly compensate for its 28 million Yuan of economic losses. 附带民事诉讼原告人西安重研所诉称:凌钢公司的二号板坯连铸机原来是委托马钢设计院设计,由于马钢设计院的设计方案不能满足凌钢公司要求,本单位才接受委托,对马钢设计院原设计中的连铸机主设备进行修改,马钢设计院仍还负责凌钢连铸机的总体设计。2000年,本单位利用数年科研成就,花费巨大人力物力,独立自主研制,完成了凌钢连铸机主设备的设计任务。经专家论证,本单位的设计是实用可行的,投产后为凌钢公司创造了巨大效益。此事实说明,本单位的设计比马钢设计院的原设计有独到之处。设计过程中形成的图纸千余张,因此也成为不为公众知悉的本单位技术秘密。2003年上半年,本单位工作人员在西冶公司发现,附带民事诉讼被告人中冶公司利用本单位的凌钢连铸机主设备图纸,在给川威公司、泰山公司加工制造板坯连铸机。后经调查,向中冶公司提供这些图纸的,是本单位原高级工程师、被告人裴国良。裴国良在本单位时没有参与凌钢连铸机主设备的设计工作,其只有通过盗窃才能得到这些图纸。中冶公司利用裴国良提供的这些图纸,与川威公司、泰山公司签订了总价款14 000余万元的合同,牟取了巨额利润。在中冶公司与川威公司、泰山公司签订的合同中,约定川威公司、泰山公司要为这些图纸承担保密义务。这足以证明,这些图纸承载着不为公众知悉的技术秘密。裴国良与中冶公司的行为,侵犯了本单位的技术秘密,给本单位造成巨大经济损失。诉请在追究裴国良刑事责任的同时,判令裴国良与中冶公司共同赔偿本单位的经济损失2800万元。
XHMRI submitted the following items of evidence: 附带民事诉讼原告人西安重研所提交以下证据:
1. No. 201 [2005] judicial authentication letter of Shaanxi Judicial Authentication Center, whose main contents are: The expenses for XHMRI to research and develop the slab continuous casting technology amount to 28 million Yuan; 1.陕西司法鉴定中心[2005]陕法鉴字第201号司法鉴定书,主要内容为:西安重研所研发板坯连铸技术的费用是2800万元;
2. testimonial and expert evaluation opinions of China Heavy Machinery Industry Association, which prove that the average profit rate of designing and manufacturing the full set of slab continuous casting machine is 12%; 2.中国重型机械工业协会的证明、专家评估意见,用以证明设计、制造板坯连铸机成套设备,平均利润率为12%;
3. the contracts concluded by CCTEC separately with CW Company and Taishan Company, which prove the scale of CCTEC's infringement and the profits gained from the infringement, and also prove that CCTEC considered XHMRI's drawings as technical secrets and require CW Company and Taishan Company in the contracts to keep confidential these drawings. 3.中冶公司与川威公司、泰山公司签订的合同,用以证明中冶公司侵权的规模以及侵权所能获得的利润,以及中冶公司也将西安重研所的图纸视为技术秘密,合同中要求川威公司、泰山公司为这些图纸保密。
Pei argued: I felt ill when I was interrogated by the public security organ, and made a guilty confession, which was not true and shall be reversed. When I worked for XHMRI, XHMRI was designing the main equipment of LY Steel Casting Machine. I like design very much, and the drawings brought to CCTEC were designed by myself at home in my spare time. The bill of indictment described that I stole XHMRI's drawings, but the description is not true. Pei's defender said: 1. the publicly published books on the design of slab continuous casting machines and the authoritative authentication conclusion of China Metallurgical Construction Association prove that the technology at issue is a recognized technology, not a commercial secret. Both Authentication Institute of XJTU and Huake Authentication Center are academic entities, and neither knows how to design slab continuous casting machines; the issued judicial authentication letter does not have authenticity, legality and relevancy, and shall not be deemed as the basis for finding the facts; the present case only involves who should design the main equipment of LY Steel Casting Machine, but the No. 201 [2005] judicial authentication letter deems all XHMRI's slab continuous casting technology research and development expenses as XHMRI's economic losses, which is obviously inauthentic, illegal and irrelevant. 2. Pei did not participate in XHMRI's design of the main equipment of LY Steel Casting Machine, nor is there any evidence in the present case to prove that Pei stole XHMRI's drawings. When CCTEC was established, it succeeded some employees and properties of Magang Design Institute, including XHMRI's drawings of the main equipment of LY Steel Casting Machine. Magang Design Institute took charge of all the design work of LY Steel Casting Machine, and was able to get XHMRI's design drawings in lawful ways. In conclusion, the bill of indictment was short of both subjective and objective elements of crime when accusing Pei's infringement upon XHMRI's commercial secret, and the crime in prosecution could not be tenable. 被告人裴国良辩称:本人在接受公安机关讯问过程中,由于身体不适,曾经作过有罪供述。那些都是不实之词,应当推翻。本人在西安重研所工作期间,该所正在设计凌钢连铸机主设备。本人酷爱设计工作,带到中冶公司的图纸是本人利用业余时间在家中设计的。起诉书指控本人盗窃了西安重研所的图纸,事实有误。裴国良的辩护人提出:1.公开出版的关于板坯连铸机设计方面的书籍和权威的中国冶金建筑协会的鉴定证明,本案所涉技术是公知技术,并非商业秘密。西交大鉴定所和华科鉴定中心都是学术单位,并不通晓板坯连铸机的设计工作,其出具的司法鉴定书不具有真实性、合法性和关联性,不能作为认定事实的根据;本案只涉及凌钢连铸机主设备由谁设计的问题,而[2005]陕法鉴字第201号司法鉴定书却将西安重研所关于板坯连铸技术的全部研发费用当作该所的经济损失,明显不具有真实性、合法性和关联性。 2.裴国良没有参加过西安重研所对凌钢连铸机主设备的设计工作,本案也没有证据证明裴国良盗窃了西安重研所的图纸。中冶公司成立时,承继了马钢设计院的一些人员和财产,其中包括西安重研所的凌钢连铸机主设备图纸。而马钢设计院曾负责凌钢连铸机的总设计工作,能合法取得西安重研所的设计图纸。起诉书指控裴国良侵犯了西安重研所的商业秘密,缺乏犯罪主客观方面的要件,指控罪名不能成立。
Pei's defender submitted the following items of evidence: 裴国良的辩护人提交以下证据:
1. the project design contract, “Contract on Alteration of the Design of LY Steel's No. 2 Slab Continuous Casting Machine”, “Technical Agreement” and “Meeting Minutes” concluded between Magang Design Institute and LY Steel Company in 1992 and 1997, which prove that Magang Design Institute got XHMRI's drawings pursuant to the agreement, and both parties never concluded any agreement on confidentiality; 1.马钢设计院与凌钢公司于1992年、 1997年签订的工程设计合同、《凌钢二号板坯连铸机工程修改设计合同》、《技术协议》、《会议纪要》,用以证明马钢设计院按协议取得西安重研所的图纸,且双方没有签订过保密协议;
2. transcripts of the talks between the defender and LY Steel Company's employees, namely, Cui Shujun and Chen Zhiqin, which prove that LY Steel Company, XHMRI and Magang Design Institute concluded a technical agreement for altering the main equipment of LY Steel Casting Machine, and the three parties have all performed the agreement; 2.辩护人与凌钢公司崔树钧、陈志芹的谈话笔录,用以证明凌钢公司、西安重研所、马钢设计院三方曾就凌钢连铸机主设备的改造签订过技术协议,且三方都已履行;
3. transcripts of the talks between the defender and CCTEC's designers, namely, Zhou Xiaoqing, Jiang Ning, Chen Yixin, Wang Lijun, and Lu Hua, which prove that Magang Design Institute participated in the design of LY Steel Casting Machine, and thus can get XHMRI's design drawings by legal means; 3.辩护人与中冶公司周晓青、江宁、陈义新、王莉君、陆华等设计人员的谈话笔录,用以证明马钢设计院参与过凌钢连铸机设计,因此能合法取得西安重研所的设计图纸;
4. the book Slab Continuous Casting Machine Design and Computation published by China Machine Press, which proves that the slab continuous casting technology is a recognized technology; 4.机械工业出版社出版的《板坯连铸机设计与计算》一书,用以证明板坯连铸技术是公知技术;
5. the report on authentication of the drawings, which was made by China Metallurgical Construction Association upon entrustment of CCTEC, and proves that the drawings at issue are a public technology, not a commercial secret. 5.中冶公司委托中国冶金建筑协会所作的图纸鉴定报告,用以证明本案涉及的图纸属于公开通用技术,不是商业秘密。
CCTEC's litigation ad litem alleged: LY Steel Casting Machine was first designed by Magang Design Institute, and was later designed by both XHMRI and Magang Design Institute through cooperation in order to improve the production efficiency. Pursuant to the contract, Magang Design Institute is the entity in charge of the technology, who should take charge of plant design, overall process design and the design work other than the main equipment, while XHMRI should take charge of designing the main equipment of LY Steel Casting Machine and achieving the process requirements of Magang Design Institute. As recorded in the “Memorandum on Handover between Party B and Party C of the Documents”, in order to cooperate in the design, XHMRI exchanged the drawings containing 5 certain technologies as referred to in No. 1 [2005] judicial authentication letter of Authentication Institute of XJTU with Magang Design Institute, including the “General Drawing of the Main Equipment (from Crystallizer to Sector Section) and the Floppy Disc”. Both parties never concluded any confidentiality agreement on the exchanged drawings. CCTEC is a joint stock company established by China Metallurgical Construction (Group) Corporation for meeting the market demands, and Magang Design Institute's assets, employees, technical documents, etc. in respect of continuous casting design were transferred to CCTEC, including the drawings delivered by XHMRI to Magang Design Institute. Therefore, it was by legal means that CCTEC obtained XHMRI's drawings and electronic documents on design of LY Steel Casting Machine. The bill of indictment was short of sufficient evidence to describe that Pei stole XHMRI CD on the drawings. Further, the bill of indictment describes that Pei's acts caused 1.48 million Yuan of economic losses to XHMRI, but XHMRI said the economic losses were 28 million Yuan, which are largely beyond the scope of losses in the civil lawsuit incidental to criminal proceedings. To sum up, the slab continuous casting technology is a public technology, not a commercial secret; CCTEC got XHMRI's drawings by legal means, should not be a criminal defendant in the present case, nor should it become a defendant of the incidental civil lawsuit. XHMRI's litigation claims against CCTEC should be rejected. 附带民事诉讼被告人中冶公司的诉讼代理人称:凌钢连铸机最早是由马钢设计院设计,后为了提高生产效率,才引入西安重研所与马钢设计院合作设计。根据合同约定,马钢设计院是技术总负责单位,负责工厂设计、工艺总体设计及除主设备外的其他设计工作,西安重研所负责凌钢连铸机主设备的设计,且西安重研所的设计应当满足马钢设计院的工艺要求。根据《乙丙双方资料交付备忘录》记载,在设计过程中为了配合工作,西安重研所曾与马钢设计院交换过包括西交司鉴所[2005]知鉴字第1号司法鉴定书所指的5项特定技术在内的图纸,其中有“主设备(结晶器至扇形段)总图及软盘”。双方对交换的这些图纸,从未签订过保密协议。中冶公司是中国冶金建设集团公司为适应市场需求成立的股份公司,马钢设计院关于连铸设计方面的资产、人员、技术资料等都被划入中冶公司,其中包括西安重研所交给马钢设计院的图纸。因此,中冶公司是合法取得西安重研所为凌钢连铸机设计的图纸及电子文档资料。起诉书指控被告人裴国良盗窃西安重研所图纸的电子光盘,证据不足;起诉书指控裴国良的行为给西安重研所造成经济损失148万元,而西安重研所却称其经济损失是2800万元,大大超出了刑事附带民事诉讼的附带范围。综上,板坯连铸技术是公开技术,不属于商业秘密;中冶公司是合法取得西安重研所的图纸,不是本案刑事被告人,也不能成为刑事附带民事诉讼的被告人,西安重研所对中冶公司提出的诉讼请求应当驳回。
CCTEC's litigation ad litem submitted the following items of evidence: 附带民事诉讼被告人中冶公司的诉讼代理人提交以下证据:
1. notification and statement of China Metallurgical Construction (Group) Corporation on establishing CCTEC, which prove the historical source of CCTEC; 1.中国冶金建设集团公司关于组建中冶公司的通知和说明,用以证明该公司来历;
2. “Meeting Minutes” of CCTEC and Magang Design Institute, which prove that CCTEC may lawfully use Magang Design Institute's drawings and relevant documents concerning continuous casting technology. 2.中冶公司与马钢设计院的《会议纪要》,用以证明中冶公司可以合法使用马钢设计院有关连铸技术方面的图纸及相关资料。
After cross-examination and certification of the evidence, Xi'an Intermediate Court verified after the trial: 经质证、认证,西安市中级人民法院审理查明:
XHMRI is a technological enterprise subordinate to China National Machinery & Equipment Corporation, and is mainly engaged in the design of metallurgical, steel-rolling, heavy forging and environmental protection equipment. XHMRI is adept at designing and manufacturing slab continuous casting equipment, and made considerable profits in such work. In order to protect its intellectual properties, XHMRI made the “Provisions of Xi'an Heavy Machinery Research Institute on Protection of Intellectual Properties” in 1996, and meanwhile specified the confidentiality obligation of its employees in the labor contracts it concluded with them. Pei was a senior engineer of slab continuous casting technology who was trained by XHMRI, and concluded with XHMRI a labor contract containing confidentiality clauses. 附带民事诉讼原告人西安重研所是隶属于中国机械装备(集团)公司的科技型企业,以冶炼、轧钢、重型锻压和环保设备的设计为主攻方向,板坯连铸设备的设计制造是该所的拳头产品,为该所带来了丰厚利润。为了保护单位的知识产权,西安重研所于1996年制定了《西安重型机械研究所保护知识产权的规定》,同时在与本单位职工签订的劳动合同中,明确了职工的保密义务。被告人裴国良是西安重研所培养的板坯连铸技术方面的高级工程师,与西安重研所签订过含有保密义务条款的劳动合同。
In January 2000, XHMRI concluded a contract with LY Steel Company, and undertook the design work of the main equipment of LY Steel Casting Machine (including crystallizer, crystallizer vibration, No. 0 section and sector section). In June 2001, LY Steel Casting Machine was put into production. In November, XHMRI provided LY Steel Company with a CD containing drawings of the main equipment of LY Steel Casting Machine pursuant to the contract. In October 2001, Pei found the CD containing drawings of the main equipment of LY Steel Casting Machine in the computer he was using, and immediately copied the drawings into his own computer. In August 2002, Pei applied to XHMRI for rescission of the labor contract, and was meanwhile employed by CCTEC as deputy general engineer. He did not rescind his labor contract with XHMRI until December. 2000年1月,附带民事诉讼原告人西安重研所通过与凌钢公司签订合同,承接了凌钢连铸机主设备(包括结晶器、结晶器震动、零号段、扇形段)的设计工作。2001年6月,凌钢连铸机投产。同年11月,按照合同约定,西安重研所向凌钢公司提供了载有凌钢连铸机主设备图纸的光盘。2001年10月,被告人裴国良在其使用的电脑中发现有凌钢连铸机主设备图纸光盘,即擅自将该图纸拷贝到自己电脑中。2002年8月,裴国良向西安重研所申请解除劳动合同,同时应聘到附带民事诉讼被告人中冶公司担任副总工程师,同年12月才正式与西安重研所解除劳动合同。
On September 28, 2002, CCTEC and CW Company concluded the “General Contract on the 135×750mm Slab Continuous Casting Machine” and the attachments thereof, with the total contractual price at 72.96 million Yuan, and Pei served as the technical person-in-charge of the project. Pei went back to Xi'an during the National Day holiday season, and copied the drawings of the main equipment of LY Steel Casting Machine into the notebook computer he brought with him. Then he took the copied drawings back to Wuhan and input them into CCTEC's LAN. By making use of the drawings provided on the LAN, CCTEC's designers completed the design of CW Company's project within a short time. On October 19, CCTEC concluded with Taishan Company the “General Contract on the 135×800mm Slab Continuous Casting Machine” and the attachments thereof, with the total contractual price at 75.6 million Yuan, and Pei was still the technical person-in-charge of the project. CCTEC's designers photocopied CW Company's design drawings and used them for Taishan Company's project. After completing the design work of the two projects, CCTEC delivered the drawings to XMM Company, and entrusted XMM Company to manufacture the machines according to the drawings. 2002年9月28日,附带民事诉讼被告人中冶公司与川威公司签订《135× 750mm二机二流板坯连铸机总合同》及附件,合同总价为人民币7296万元,被告人裴国良担任这个项目的技术负责人。裴国良利用国庆休假返回西安,将凌钢连铸机主设备图纸拷贝到随身携带的笔记本电脑中带回武汉,输入到中冶公司局域网内。中冶公司设计人员利用局域网提供的该图纸,在短时间就完成了川威公司项目的设计。10月19日,中冶公司又与泰山公司签订《135×800mm二机二流板坯连铸机总合同》及附件,合同总价为人民币7560万元,裴国良仍是这个项目的技术负责人。中冶公司设计人员将给川威公司的设计图纸复印,用于泰山公司项目。中冶公司完成这两个项目的设计工作后,将图纸交付给西冶公司,委托西冶公司按图制造。
In July 2003, XHMRI's employees found in XMM Company that XMM Company was using drawings with XHMRI's titles and serial numbers to manufacture slab continuous casting machines. Then XHMRI reported to the public security organ, saying its commercial secrets were infringed upon. Xi'an Municipal Public Security Bureau (hereafter referred to as Xi'an PSB) verified from investigation that the drawings used by XMM Company came from CCTEC, and were provided to CCTEC by Pei, former employee of XHMRI. Then, Xi'an PSB chose some relevant drawings and delivered them to Huake Authentication Center for authentication. The conclusion is: The drawings of the slab continuous casting machine which CCTEC designed for CW Company and Taishan Company have no essential difference from the drawings designed by XHMRI when judged from the assembly drawings and the structure and functions manifested on the parts drawings. It was later concluded by Authentication Institute of XJTU after authentication: XHMRI's technology of LY Steel Casting Machine is unknown to the public, and meets the statutory conditions of technical secrets which belong to commercial secrets. When designing and manufacturing the slab continuous casting machine for CW Company and Taishan Company, CCTEC used XHMRI's drawings provided by Pei on the technology of LY Steel Casting Machine, and the act has caused at least 17.82 million Yuan of economic losses to XHMRI. 2003年7月,附带民事诉讼原告人西安重研所的工作人员在西冶公司发现该公司正在使用有西安重研所标题和标号的图纸制造板坯连铸机,西安重研所遂向公安机关报案,称其商业秘密被侵犯。西安市公安局立案侦查后,查明西冶公司使用的图纸来自于附带民事诉讼被告人中冶公司,是原在西安重研所工作的被告人裴国良向中冶公司提供的,遂调取相关图纸送华科鉴定中心进行鉴定,结论是:中冶公司为川威公司、泰山公司设计的板坯连铸机图纸,从装配图和零件图所表现的结构功能看,与西安重研所设计的图纸无本质区别。又经西交大鉴定所鉴定:西安重研所的凌钢连铸机技术具有不为公众知悉的特征,符合商业秘密中技术秘密的法定条件。裴国良向中冶公司提供西安重研所的凌钢连铸机技术图纸,由中冶公司在为川威公司、泰山公司设计、制造板坯连铸机时使用,该行为给西安重研所造成至少1782万元的经济损失。
CCTEC was established by China Metallurgical Construction (Group) Corporation in December 2001. 2001年12月,附带民事诉讼被告人中冶公司由中国冶金建筑集团公司设立。
DISPUTED ISSUES 
The focuses of the present case are as follows: 1. Is the technology of designing the main equipment of LY Steel Casting Machine a recognized technology or a commercial secret? 2. Was it lawful for CCTEC to obtain the drawings of the main equipment of LY Steel Casting Machine? 3. Can CCTEC be a defendant of the incidental civil lawsuit? And 4. How shall the amount of XHMRI's losses be calculated? 本案争议焦点是:一、凌钢连铸机主设备设计技术是公知技术,还是商业秘密?二、中冶公司取得凌钢连铸机主设备图纸是否合法?三、中冶公司能否成为附带民事诉讼被告人?四、西安重研所遭受的损失数额如何计算?
PROCEDURAL POSTURE 
Xi'an Intermediate Court holds: 西安市中级人民法院认为:
I. It was when Magang Design Institute's design program failed to meet LY Steel Company's requirements that XHMRI was entrusted to alter Magang Design Institute's original design. XHMRI's altered design was concluded after experts' argumentation to be practicable and feasible. The facts prove that, the slab continuous casting machine manufactured according to XHMRI's altered design did create huge benefits for LY Steel Company after being put into production. It also shows that XHMRI's design on the main equipment of LY Steel Casting Machine has its uniqueness and has commercial value when compared with Magang Design Institute's original design. XHMRI took confidentiality measures when designing the main equipment of LY Steel Casting Machine, and changed the design into its own technical secret. 一、附带民事诉讼原告人西安重研所是在马钢设计院的设计方案不能满足凌钢公司要求时,才接受委托,对马钢设计院的原设计进行修改。西安重研所的修改设计经专家论证,是实用可行的。事实证明,按照西安重研所的修改设计制造的板坯连铸机,投产后为凌钢公司创造了巨大的效益。这也说明西安重研所的凌钢连铸机主设备设计比马钢设计院的原设计有独到之处,具有商业价值。西安重研所对凌钢连铸机主设备设计采取了保密措施,使其成为自己的技术秘密。
A judicial authentication conclusion is a conclusion drawn after scientific analysis by a professional authentication institution or persons entrusted by a judicial organ regarding a professional issue. Authentication Institute of XJTU is an authentication entity established upon approval of Shaanxi Provincial Department of Justice, and the staff separately come from Xi'an Jiaotong University and Metallurgical Engineering School of Xi'an University of Architecture and Technology, who specially take charge of judicial authentication of intellectual properties; Huake Authentication Center is subordinate to China Scientific and Technological Law Society, and its staff separately come from Mechanics and Automation School of Beijing Technology and Business University, Mechanics and Automation School of Tsinghua University, and Mechanical Engineering School of Yanshan University. It is also an institution specially engaged in judicial authentication of intellectual properties. After being entrusted by the public security organ, the two entities made tests and analysis with their own special knowledge and relevant technical means, and drew their conclusions regarding whether the designed main equipment of LY Steel Casting Machine is a recognized technology or a commercial secret, and affirmed that the technology on the main equipment of LY Steel Casting Machine is XHMRI's commercial secret. This conclusion can corroborate other evidence in the present case, and is a scientific conclusion. 司法鉴定结论,是有权进行鉴定的专业机构或人员接受司法机关委托,对某项专业问题进行科学分析后得出的结论。西交大鉴定所是陕西省司法厅批准设立的鉴定单位,人员分别来自于西安交通大学、西安建筑科技大学冶金工程学院,专门负责知识产权司法鉴定工作;华科鉴定中心隶属于中国科学技术法学会,人员分别来自于北京工商大学机械自动化学院、清华大学机械与自动化学院、燕山大学机械工程学院,也是专门从事知识产权司法鉴定的机构。这两个单位受公安机关委托,就凌钢连铸机主设备设计是公知技术还是商业秘密这一专业问题,运用自己的专门知识和相关技术手段进行检测、分析后作出结论,认定凌钢连铸机主设备技术是西安重研所的商业秘密。这个结论能与本案其他证据相互印证,是科学的结论。
On the basis of the book Slab Continuous Casting Machine Design and Computation published by China Machine Press and the authentication report made by China Metallurgical Construction Association on the drawings upon CCTEC's entrustment, Pei's defender and CCTEC's litigation ad litem asserted that the drawings of the main equipment of LY Steel Casting Machine were a public technology, not a commercial secret, and did not think the authentication letter issued by Authentication Institute of XJTU and Huake Authentication Center had authenticity, legality and relevancy. The above said professional book introduced the slab continuous casting technology publicly, but it does not mean it introduced XHMRI's altered design of the main equipment of LY Steel Casting Machine. It is short of probative force and contrary to common sense to prove the design of the main equipment of LY Steel Casting Machine as a recognized technology with such a publicly published book. China Metallurgical Construction Association is not qualified for judicial authentication, and the procedures were unlawful when it accepted the CCTEC's entrustment to authenticate the design drawings on the main equipment of LY Steel Casting Machine. Hence, the authentication report had no probative force. 被告人裴国良的辩护人以及附带民事诉讼被告人中冶公司的诉讼代理人依据机械工业出版社出版的《板坯连铸机设计与计算》一书和中冶公司委托中国冶金建筑协会所作的图纸鉴定报告,主张凌钢连铸机主设备图纸是公开通用的技术,不属于商业秘密,认为西交大鉴定所和华科鉴定中心出具的鉴定书不具有真实性、合法性和关联性。上述专业书籍公开介绍板坯连铸技术,不等于公开介绍了西安重研所对凌钢连铸机主设备所作的修改设计,以这样一本公开出版的书籍来证明凌钢连铸机主设备设计是公知技术,缺乏证明力且有悖常理。中国冶金建筑协会不具备进行司法鉴定的资质,其接受本案当事人中冶公司的委托,对凌钢连铸机主设备设计图纸进行鉴定,程序不合法,该鉴定报告不具有证明效力。
In addition, when CCTEC concluded contracts with CW Company and Taishan Company, it particularly required CW Company and Taishan Company to bear the confidentiality responsibility for the design program on the main equipment of LY Steel Casting Machine, which is sufficient to prove that CCTEC also knew this technology was not a recognized technology, but a technical secret. The viewpoint of Pei's defender and CCTEC's litigation ad litem that the design of the main equipment of LY Steel Casting Machine is a recognized technology cannot be tenable. 另外,附带民事诉讼被告人中冶公司在与川威公司、泰山公司签订合同时,特别要求川威公司、泰山公司对其使用的凌钢连铸机主设备设计方案承担保密责任,足以证明中冶公司也知道此项技术不是公知技术,而是技术秘密。被告人裴国良的辩护人以及中冶公司的诉讼代理人关于凌钢连铸机主设备设计是公知技术的观点,依法不能成立。
II. As for the source of the drawings of the main equipment of LY Steel Casting Machine which CCTEC used, Pei all along confessed in the public security organ as follows: When he worked in XHMRI, he found by chance a CD containing the drawings of the main equipment of LY Steel Casting Machine in the computer he was using, and then copied the drawings; later, when he worked in CCTEC and served as the technical person-in-charge of CW Company's project, he found that CCTEC only had the general drawing handed over by Magang Design Institute on the main equipment of LY Steel Casting Machine. But the equipment cannot be manufactured only on the basis of the general drawing, so he uploaded the copied drawings of the main equipment of LY Steel Casting Machine on to CCTEC's LAN. Although Pei withdrew his confession in the court hearing, he still confessed that the drawings of the main equipment of LY Steel Casting Machine which he brought to CCTEC were designed at home in his spare time. On the basis of the evidence such as the contract on Magang Design Institute's participation in the design of LY Steel Casting Machine, the technical agreement, the testimonies of the witnesses, CCTEC's meeting minutes, and the testimonial of China Metallurgical Construction (Group) Corporation, CCTEC's litigation ad litem insisted on holding that CCTEC obtained the drawings of the main equipment of LY Steel Casting Machine from Magang Design Institute by legal means. Obviously, the two viewpoints are contradictive to each other. 二、关于附带民事诉讼被告人中冶公司使用的凌钢连铸机主设备图纸来源,被告人裴国良在公安机关一直供述:其在附带民事诉讼原告人西安重研所处工作时,在自己使用的电脑中偶然发现有一张刻录着凌钢连铸机主设备图纸的光盘,便将该图纸拷贝下来;后其到中冶公司工作并担任川威公司项目的技术负责人时,发现中冶公司只有马钢设计院移交的凌钢连铸机主设备总图,仅凭总图无法制造出设备,故将其拷贝的西安重研所的凌钢连铸机主设备图纸上传到中冶公司局域网上。裴国良虽然当庭翻供,但仍供称带到中冶公司的凌钢连铸机主设备图纸是其利用业余时间自己在家中设计的。中冶公司的诉讼代理人则以马钢设计院参与凌钢连铸机设计的合同、技术协议、证人证言和中冶公司的会议纪要、中国冶金建筑集团公司证明等证据,坚持认为凌钢连铸机主设备图纸是中冶公司从马钢设计院合法取得的。二者显然存在矛盾。
The evidence proves: 1. Besides XHMRI, LY Steel Company was also able to have the drawings of the main equipment of LY Steel Casting Machine, but LY Steel Company was basically impossible to divulge the secret. 2. Although Magang Design Institute participated in the design of LY Steel Casting Machine, it only took charge of designing the plant and the equipment other than the main equipment. In order to facilitate Magang Design Institute's installation of the machine, XHMRI had to provide Magang Design Institute with the general drawing on the main equipment, but did not provide the detailed drawings on the main equipment of LY Steel Casting Machine. 3. Pei did not participate in the design of LY Steel Casting Machine. Although Pei withdrew his confession in the court hearing, his ground was that he felt ill when he was interrogated. It was verified that, the public security organ interrogated Pei for several times within half a year, but the confession made by Pei at each time was always stable, and could corroborate other evidence. Hence, his ground for withdrawing the confession was not rational, and should not be adopted. Xi'an Procuratorate prosecuted on the basis of Pei's confessions and other verified evidence that Pei took advantage of his job to steal XHMRI's commercial secret and then provided it to CCTEC. The evidence was conclusive, and the facts were clear to be found. CCTEC could only get the drawings of the main equipment of LY Steel Casting Machine from Pei. Hence, CCTEC's drawings on the main equipment of LY Steel Casting Machine were not obtained by legal means. 本案证据证明:1.有条件掌握凌钢连铸机主设备图纸的,除了附带民事诉讼原告人西安重研所外,还有凌钢公司,但凌钢公司泄密的可能性已经被排除。2.马钢设计院虽然参加过凌钢连铸机设计,但其仅负责设计工厂和除主设备外的其他设备。为了便于马钢设计院安装机器,西安重研所必须将主设备总图提供给马钢设计院,但未向其提供凌钢连铸机主设备详图。3.被告人裴国良没有参与凌钢连铸机设计过程。裴国良虽然当庭推翻了其在公安机关的供述,但翻供的理由是接受讯问时身体不适。经查,公安机关在长达半年之久的时间里多次对裴国良进行讯问,而裴国良每次的供述内容始终较为稳定,且能与其他证据相互印证,故其翻供的理由不符合常理,不予采信。公诉机关根据裴国良的多次供述以及其他经核实的证据,指控裴国良利用工作之便盗窃西安重研所的商业秘密提供给中冶公司使用,事实清楚,证据确凿,足以认定。中冶公司只能从裴国良处得到凌钢连铸机主设备图纸,别无他途,因此中冶公司的凌钢连铸机主设备图纸不是合法取得。
III. Item (5) of Article 86 of the “Interpretation of the Supreme People's Court on Several Issues concerning the Implementation of the Criminal Litigation Law of the People's Republic of China” prescribes: The persons liable for compensation in an incidental civil lawsuit shall include other entities and individuals who shall lawfully bear civil liability for compensation for the criminal defendant's criminal acts. Pei was employed by CCTEC, and was the technical person-in-charge of the project. In order to complete the design task assigned by CCTEC, Pei uploaded the technical secret stolen from XHMRI onto CCTEC's LAN for CCTEC's designers to make use when they designed and manufactured the slab continuous casting machines for CW Company and Taishan Company. Pei directly committed the infringement in performing public duties, and his acts belonged to service infringement, thus CCTEC for which he worked should bear the civil liability for infringement. Objectively, it was by depending on the drawings uploaded by Pei that CCTEC completed the design and manufacture of the slab continuous casting machine for CW Company and Taishan Company within a short time, and thus made huge amount of profits. CCTEC and Pei caused damage by jointly infringing upon XHMRI's lawful civil rights and interests, and their acts had legal causality with the damage. If only the civil aspect is considered, CCTEC should also bear the liability for compensating for XHMRI's economic losses. It was not only lawful but also reasonable to list CCTEC as the defendant in the incidental civil lawsuit. 三、最高人民法院《关于执行<中华人民共和国刑事诉讼法>若干问题的解释》第八十六条第(五)项规定:附带民事诉讼中依法负有赔偿责任的人包括其他对刑事被告人的犯罪行为依法应当承担民事赔偿责任的单位和个人。被告人裴国良受聘于附带民事诉讼被告人中冶公司,是项目技术负责人。裴国良为完成中冶公司交付的设计任务,将窃取附带民事诉讼原告人西安重研所的技术秘密上传到中冶公司局域网,供中冶公司的设计人员在为川威公司、泰山公司设计、制造板坯连铸机时使用。裴国良是为履行公职而直接侵权,其行为属于单位侵权,应当由其所在单位中冶公司承担侵权的民事责任。客观上,中冶公司也是靠裴国良上传的图纸,才能在短时间内为川威公司、泰山公司完成板坯连铸机的设计、制造工作,从而谋取了巨额利润。中冶公司的行为与裴国良的行为共同导致侵犯西安重研所合法民事权益的损害结果发生,均与损害结果之间存在着法律上的因果关系。单从民事角度讲,中冶公司也应对西安重研所遭受的经济损失承担赔偿责任。将中冶公司列为本案附带民事诉讼被告人,不仅合法,而且合理。
IV. Article 2 of the “Provisions of the Supreme People's Court on the Scope of Civil Lawsuit Incidental to Criminal Proceedings” prescribes: “The victim's material loss suffered from the crime refers to the actual loss that has been suffered and the inevitable losses incurred from the crime.” A technical secret, which belongs to commercial secrets, is the technical information which has commercial value and may create fortune for the obligee, and is also the obligee's intangible assets. The losses caused to an obligee by the doer who obtains or uses a technical secret by illegitimate means are often manifested as the loss of the obligee's actual interests and reasonable anticipated interests, therefore, the amount of the obligee's losses cannot be delimited simply on the basis of the damaged actual interests. It was incorrect for Xi'an Procuratorate to affirm XHMRI's economic losses as at least 1.48 million Yuan on the basis of the expenses for design of LY Steel Casting Machine. Although the obligee's losses included many anticipated losses incurred from reduction of market shares and weakened competitive strength, etc., the value is always uncertain, but the anticipated losses must be reasonable. In the No. 201 [2005] judicial authentication letter, XHMRI's research and development expenses in the past years in the area of the slab continuous casting technology amounted to 28 million odd Yuan, which was affirmed as XHMRI's economic losses. In the present case, the infringement only involves the design of the main equipment of LY Steel Casting Machine, and the technology is only a part of XHMRI's whole slab continuous casting technology. Therefore, it is obviously inappropriate to deem the total research and development expenses as the losses incurred from the infringement of part of the technology. XHMRI's assertion based on the No. 201 [2005] judicial authentication letter against CCTEC for 28 million Yuan of compensation shall not be supported. 四、最高人民法院《关于刑事附带民事诉讼范围问题的规定》第二条规定:“被害人因犯罪行为遭受的物质损失,是指被害人因犯罪行为已经遭受的实际损失和必然遭受的损失。”商业秘密中的技术秘密,是一种具有商业价值,能给权利人创造财富的技术信息,是权利人的无形资产。行为人采取不正当手段获取与使用技术秘密给权利人造成的损失,通常表现为权利人现实利益与合理预期利益的丧失,因此不能简单地以受损的现实利益来界定权利人的损失数额。公诉机关以凌钢连铸机设计费来认定附带民事诉讼原告人西安重研所遭受的经济损失至少为148万元,是不正确的。虽然权利人的损失中包括市场份额被削减、竞争力减弱等许多预期利益损失,其价值量往往不确定,但预期利益的损失必须合理。[2005]陕法鉴字第201号司法鉴定书累计西安重研所在板坯连铸技术方面多年来的总投入,得出总的研发费用为2800余万元,将此认定为西安重研所遭受的经济损失。本案只是凌钢连铸机主设备设计被侵权,该技术是西安重研所整个板坯连铸技术的一个组成部分,故将总研发费用认定为部分技术被侵权的损失,显系不当。西安重研所以[2005]陕法鉴字第201号司法鉴定书为依据,认为附带民事诉讼被告人应赔偿2800万元,该主张不予支持。
Article 20 of the “Anti-unfair Competition Law of the People's Republic of China” prescribes: “A business operator shall bear the liability for compensating for the damage caused by the infringer to the infringed party due to violation of the present Law. The amount of the compensation shall be equivalent to the profits made by the infringer during its infringement if it is difficult to measure the amount of damage; the infringer shall also compensate for the reasonable cost to the infringed party who has paid the cost for investigation of the infringer's unfair competition.” In the present case, CCTEC made use of XHMRI's drawings of the main equipment of LY Steel Casting Machine to design and manufacture slab continuous casting machines for others, and made huge amount of profits. Since CCTEC's acts were unfair competition, the aforesaid provision should apply. The total amount under the two contracts concluded by CCTEC separately with CW Company and Taishan Company on design and installation of the slab continuous casting machines was 148,560,000 Yuan. However, the amount of profits made by CCTEC under the two contracts cannot be determined from the existing accounts. To calculate according to the expert evaluation opinions of China Heavy Machinery Industry Association on the average profit rate of the design and manufacture of the full set of the slab continuous casting machine, i.e., 12%, the profits made by CCTEC from the two contracts could be affirmed as 14,856×12% = 17,820,000 Yuan. 中华人民共和国反不正当竞争法》第二十条规定:“经营者违反本法规定,给被侵害的经营者造成损害的,应当承担损害赔偿责任,被侵害的经营者的损失难以计算的,赔偿额为侵权人在侵权期间因侵权所获得的利润;并应当承担被侵害的经营者因调查该经营者侵害其合法权益的不正当竞争行为所支付的合理费用。”就本案而言,附带民事诉讼被告人中冶公司利用附带民事诉讼原告人西安重研所的凌钢连铸机主设备图纸为他人设计、制造板坯连铸机,从而谋取巨额利润,是不正当竞争行为,故应适用上述规定。中冶公司与川威公司、泰山公司签订的两个板坯连铸机设计、安装合同,总金额为14 856万元。但是中冶公司在这两个合同中获取了多少利润,从现有财务账目中无法确定。按照中国重型机械工业协会关于板坯连铸机成套设备设计、制造的平均利润为12%的专家评估意见计算,中冶公司从这两份合同中所获的利润可以认定为14 856×12%=1782万元。
Items (1) and (3) of Paragraph 1 of Article 219 of the “Criminal Law of the People's Republic of China” prescribe that, whoever obtains an obligee's commercial secrets by stealing, luring, coercion or by any other illegitimate means or violates the agreement on or the obligee's demand for keeping business secrets, discloses, uses or allows another person to use the commercial secrets he controls, and thus causes heavy losses to the obligee, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined; if the consequences are particularly serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined. Paragraph 3 prescribes: “The term commercial secret as mentioned in this Article shall refer to technology information or commercial information which is unknown to the public, can bring economic benefits to the obligee, is of practical use and with regard to which the obligee has taken the secret-keeping measure.” Paragraph 2 of Article 7 of the “Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Specific Application of Laws for Handling Criminal Cases on Infringement of Intellectual Property” prescribes: “If the amount of losses caused to the commercial secret obligee is not less than 2,500,000 Yuan, the case shall be deemed as a ‘particularly serious consequence' as prescribed in Article 219 of the Criminal Law, and the infringer shall be sentenced to a fixed-term imprisonment of not less than three years but not more than seven years for the crime of infringing upon commercial secret, and shall be concurrently imposed upon a pecuniary fine, as well.” The drawings of the main equipment of LY Steel Casting Machine are technical information which is not publicized and can bring economic interests to XHMRI. XHMRI had actually taken confidentiality measures to the technical information by way of making provisions and concluding labor contracts containing confidentiality clauses with its employees. Consequently, this technology became a commercial secret of XHMRI. Pei took advantage of his work to steal the commercial secret, and provided it to others for use, causing 17,820,000 Yuan of economic losses to XHMRI, with the consequence being particularly serious, thus his acts constituted the crime of infringing upon commercial secret, and he should be punished according to the law. In conclusion, the crime in Xi'an Procuratorate's prosecution against Pei was tenable. 中华人民共和国刑法》第二百一十九条第一款第(一)、(三)项规定,以盗窃、利诱、胁迫或者其他不正当手段获取权利人的商业秘密,违反约定或者违反权利人有关保守商业秘密的要求,披露、使用或者允许他人使用其所掌握的商业秘密,从而给商业秘密的权利人造成重大损失的,处三年以下有期徒刑或者拘役,并处或者单处罚金;造成特别严重后果的,处三年以上七年以下有期徒刑,并处罚金。第三款规定:“本条所称商业秘密,是指不为公众所知悉,能为权利人带来经济利益,具有实用性并经权利人采取保密措施的技术信息和经营信息。”最高人民法院、最高人民检察院《关于办理侵犯知识产权刑事案件具体应用法律若干问题的解释》第七条第二款规定:“给商业秘密的权利人造成损失数额在二百五十万元以上的,属于刑法二百一十九条规定的‘造成特别严重后果',应当以侵犯商业秘密罪判处三年以上七年以下有期徒刑,并处罚金。”凌钢连铸机主设备图纸,是不对外公开、且能给附带民事诉讼原告人西安重研所带来经济利益的技术信息。西安重研所通过制定规定,与单位职工签订含有保密条款的劳动合同,对此技术信息采取了保密措施,使此项技术成为该单位的商业秘密。被告人裴国良利用工作之便盗窃该商业秘密,并提供给他人使用,从而使西安重研所遭受1782万元的经济损失,后果特别严重,其行为构成侵犯商业秘密罪,应依法惩处。西安市人民检察院指控裴国良的罪名成立。
Paragraph 1 of Article 106 of the “General Principles of Civil Law of the People's Republic of China” prescribes: “Citizens and legal persons who breach a contract or fail to fulfill other obligations shall bear civil liability.” Paragraph 2 prescribes: “Citizens and legal persons who through their fault encroach upon state or collective property, or the property or person of other people shall bear civil liability.” Article 130 prescribes: “If two or more persons jointly infringe upon another person's rights and cause him damage, they shall bear joint liability.” CCTEC made use of the commercial secret of others to perform the contract for the purpose of seeking huge amount of profits. CCTEC was both the direct beneficiary of the infringement acts, and the direct liable person who caused economic losses to XHMRI. Hence, it should bear the civil liability for compensating for losses. 中华人民共和国民法通则》第一百零六条第一款规定:“公民、法人违反合同或者不履行其他义务的,应当承担民事责任。”第二款规定:“公民、法人由于过错侵害国家的、集体的财产,侵害他人财产、人身的,应当承担民事责任。”第一百三十条规定:“二人以上共同侵权造成他人损害的,应当承担连带责任。”附带民事诉讼被告人中冶公司为了谋取巨额利润,利用他人的商业秘密履行合同,既是侵权行为的直接受益人,也是给附带民事诉讼原告人西安重研所造成经济损失的直接责任人,应当承担赔偿损失的民事责任。
Therefore, Xi'an Intermediate Court sentenced as follows on February 22, 2006: 据此,西安市中级人民法院于2006年 2月22日判决:
1. Pei has committed the crime of infringing upon commercial secret, and shall be sentenced to fixed-term imprisonment of three years and imposed upon a fine of 50,000 Yuan; 一、被告人裴国良犯侵犯商业秘密罪,判处有期徒刑三年,并处罚金5万元;
2. Pei and CCTEC shall stop their tortuous act; and 二、被告人裴国良及附带民事诉讼被告人中冶公司停止侵权行为;
3. Pei and CCTEC shall jointly compensate XHMRI for the 17,820,000 Yuan of economic losses. 三、被告人裴国良及附带民事诉讼被告人中冶公司连带赔偿附带民事诉讼原告人西安重研所经济损失1782万元。
After the judgment of the first instance was announced, Pei was dissatisfied and appealed to the Higher People's Court of Shaanxi Province (hereinafter referred to as Shaanxi Higher Court). Meanwhile, XHMRI and CCTEC appealed regarding the incidental civil adjudication. In the process of the trial of the second instance, XHMRI reached a mediation agreement with Pei and CCTEC regarding the incidental civil lawsuit, and accepted the letter of mediation served by Shaanxi Higher Court. 一审宣判后,被告人裴国良不服,向陕西省高级人民法院提出上诉,附带民事诉讼原告人西安重研所、附带民事诉讼被告人中冶公司同时就附带民事判决部分提出上诉。二审审理过程中,西安重研所与裴国良、中冶公司就本案的附带民事诉讼部分达成调解协议,并已接受了陕西省高级人民法院送达的调解书。
Pei alleged in the appeal: 1. The drawing authentication report issued by China Metallurgical Construction Association and the publicly published book prove that the technology of the main equipment of LY Steel Casting Machine is a recognized technology, not a commercial secret; it was wrong for Xi'an Intermediate Court to unilaterally adopt the authentication conclusions that Huake Authentication Center and Authentication Institute of XJTU made and that had no probative capacity, and re-authentication is requested; 2. I did not steal XHMRI's technical documents on LY Steel Casting Machine, nor did I deliver them to CCTEC for use; 3. Even if my acts are affirmed to have caused losses to XHMRI, the amount of losses shall only be limited to the 1.48 million Yuan of design fee charged by XHMRI from LY Steel Company. The amount does not meet the standard for conviction of the crime of infringing upon commercial secret. Pei pleaded Shaanxi Higher Court to revoke the judgment of the first instance and to announce him innocent. 裴国良上诉称:1.中国冶金建设协会出具的图纸鉴定报告以及公开出版的书籍证明,凌钢连铸机主设备技术是公知技术,并非商业秘密;原审片面采信华科鉴定中心、西交大鉴定所不具备证明效力的鉴定结论,是错误的,请求重新鉴定;2.本人未窃取西安重研所的凌钢连铸机技术资料,也未交予中冶公司使用;3.即使认定本人的行为给西安重研所造成损失,损失数额也只应以西安重研所收取凌钢公司的设计费148万元为限。这个数额不符合侵犯商业秘密罪的定罪标准。请求撤销原判,宣告裴国良无罪。
Shaanxi Higher Court confirmed after trial that the facts verified in the first instance were true. 陕西省高级人民法院经审理,确认一审查明的事实属实。
JUDGMENT'S REASONING 
Shaanxi Higher Court holds that the design of the main equipment of LY Steel Casting Machine is practicable, unknown to the public, and can bring economic interests to the obligee. Since XHMRI, the obligee, took confidentiality measures, the technology was its commercial secret under lawful protection. Pei was a senior engineer of XHMRI, clearly knew that the drawings of the main equipment of LY Steel Casting Machine were XHMRI's commercial secret, concluded a labor contract containing confidentiality clauses with XHMRI, and was obligated to keep confidential XHMRI's commercial secret, but he still took advantage of his job to privately copy the electronic text of the drawings of the main equipment of LY Steel Casting Machine and possessed the copy, and then handed the electronic text to CCTEC for use, causing particularly serious consequences to XHMRI. Pei's acts constituted the crime of infringing upon commercial secret, and he shall be punished according to the law. In the judgment of the first instance, the conviction is accurate, the sentencing is appropriate, the trial procedures are lawful, but the applicable laws shall be Items (1) and (2) of Paragraph 1, as well as Paragraphs 3 and 4 of Article 219 of the Criminal Law. Pei's appellate grounds cannot be tenable, and shall be rejected. 陕西省高级人民法院认为,凌钢连铸机主设备设计具有实用性,不为公众所知悉,能为权利人带来经济利益,权利人为其采取了保密措施,因此该技术是权利人西安重研所依法受保护的商业秘密。上诉人裴国良身为西安重研所的高级工程师,明知凌钢连铸机主设备图纸是西安重研所的商业秘密,自己与西安重研所签订过含有保密条款的劳动合同,对西安重研所的商业秘密负有保密义务,仍利用工作上的便利,将凌钢连铸机主设备图纸的电子版私自复制据为己有,后又将该电子版交由中冶公司使用,以至给西安重研所造成特别严重的后果。裴国良的行为构成侵犯商业秘密罪,应依法惩处。原判定罪准确,量刑适当,审判程序合法,但适用的法律应当是刑法二百一十九条第一款第(一)、(二)项、第三款、第四款。裴国良的上诉理由不能成立,应当驳回。
JUDGMENT 
Therefore, Shaanxi Higher Court ruled as follows on October 11, 2006 in accordance with Item (1) of Article 189 of the “Criminal Litigation Law of the People's Republic of China”: 据此,陕西省高级人民法院依照《中华人民共和国刑事诉讼法》第一百八十九条第(一)项规定,于2006年10月11日裁定:
The appeal shall be rejected, and the judgment of the first instance shall be sustained. 驳回上诉,维持原判。
The present Ruling shall be final.

 本裁定为终审裁定。
 

     
     
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