2017.10.12
Sean Liu
The Intellectual Property Court rendered the 106-Xing-Zhi-Shang-Su-29 Criminal Decision of October 12, 2017 (hereinafter, the “Decision”), holding that concurrent punishment is adopted under Article 13-4 of the Trade Secret Law where the precondition is that the actor shall be penalized because the punishment is dependent by nature.
According to the facts underlying this Decision, Accused A served as a research and development engineering at the Complainant’s company and signed a confidentiality agreement (such portion of the criminal facts was heard in a separate case), and Accused B worked for the Complainant’s company in fulfillment of his research and development substitute military service before joining the company of Accused C. Accused A and Accused B stole semi-finished aluminum paste products from the Complainant’s company and provided the same to Accused C’s company for analysis. Therefore, it was asserted that the accused individuals allegedly violated the Trade Secret Law. As an employee of Accused C’s company, Accused B committed an offense under Article 13-1 of the Trade Secret Law during his discharge of responsibilities. Therefore, it was asserted that a fine shall be imposed on Accused C’s company in accordance with Article 13-4 of the Trade Secret Law.
According to the Decision, Article 13-4 of the Trade Secret Law provides: “Where the representative of a juristic person or the agent,employee or any other staff of a juristic person or natural person commits any of the offensesset forth in Article 13-1 or 13-2 in the course of business, not only the actor shall be penalized pursuant to such article, but also the juristic person or the natural person shall be subject to the fine under such article.” Such article contains provisions concerning the concurrent punishment system where the actor and his/her enterprise or organization are concurrently penalized for the same criminal offense. As far as the actor is concerned, the punishment is imposed to sanction illegal criminal acts, while for the enterprise or organization, its punishment is imposed for their inadequate supervision. From the perspective of legal theories, the punishment on the penalized enterprise or organization is dependent by nature and is preconditioned by that fact that the actor is punished. Therefore, since Accused B was not criminally punished by the court due tothe Complainant’s withdrawal of the complaint, the fine imposed on Accused C’s company lost its basis. Therefore, it was certainly necessary to also instruct that a dismissal judgment would be rendered.