183 of the Criminal Code Disclosure of commercial, tax and banking secrets

Unscrupulous partners, gaining access to commercial, tax and banking secrets, jeopardize the company's position in the market. Economic espionage is an illegal method of competition. As a rule, organizations determine a special regime for insider data based on legislative requirements on trade secrets, banks and banking activities, as well as the Tax Code of the Russian Federation. If this information is unlawfully disclosed, the perpetrators may be subject to criminal prosecution under Article 183 of the Criminal Code of the Russian Federation.

What are commercial, tax and banking secrets?

Article 183 of the Criminal Code of the Russian Federation simultaneously protects three types of secrets: commercial, banking and tax.

Trade secrets are confidential data thanks to which entrepreneurs and organizations successfully conduct business and interact with counterparties. For example, information about contractors, know-how, and the value of the company’s property.

Tax secret is information about citizens and enterprises received by the Federal Tax Service and extra-budgetary funds in connection with taxpayers’ obligations to pay taxes and insurance contributions. For example, personal data, transaction information.

Banking secrecy is data that citizens and companies provided to a credit institution when opening an account, making a deposit, or applying for a loan. For example, bank card numbers and PIN codes for them, terms of the loan agreement.

Within organizations, in banks, the Federal Tax Service and other government agencies that receive insider information from citizens and organizations, documentation is being developed to protect all types of secrets. Employees sign a confidentiality agreement.

Conditions on disciplinary and financial liability are included on the basis of the Labor Code of the Russian Federation in the employment contract and job descriptions. After dismissal, the former employee is obliged to continue to keep confidential information that was communicated to him in connection with the performance of his official duties.

Not all information is classified as commercial, tax or banking secret. If you are accused of disseminating confidential data, it is advisable to immediately contact our lawyers. They will tell you how to prove the absence of a violation.

Commentary to Art. 183 Criminal Code

1. The legal regime of a trade secret is determined by the Civil Code of the Russian Federation and the Federal Law of July 29, 2004 N 98-FZ “On Trade Secrets”. A trade secret is a regime of confidentiality of information that allows its owner, under existing or possible circumstances, to increase income, avoid unjustified expenses, maintain a position in the market for goods, works, services, or obtain other commercial benefits.

2. Tax secret consists of any information about the taxpayer received by the tax authority, internal affairs bodies, the body of the state extra-budgetary fund and the customs authority, with the exception of a number of specially specified information (Article 102 of the Tax Code of the Russian Federation).

3. Banking secrecy consists of information about transactions, accounts and deposits of clients and correspondents (Article 857 of the Civil Code of the Russian Federation, Article 26 of the Federal Law of December 2, 1990 N 395-1 “On Banks and Banking Activities”). The credit institution itself, at its own discretion, can neither expand nor narrow the list of information classified as bank secrecy, nor the circle of persons entitled to receive this information. In relation to banks and other credit organizations, one should distinguish between the commercial secret of the credit institutions themselves as a commercial organization and banking secrets.

4. In part 1 of Art. 183 of the Criminal Code provides for liability for collecting relevant information through theft of documents, bribery, threats, as well as other illegal means. This information must have some tangible form. In addition to documents (named by the law itself), these can be drawings, industrial designs, inventions, etc. Other illegal means include illegal access to computer information, illegal wiretapping of telephone conversations, illegal access to correspondence, etc.

5. Collection of the information in question through unlawful access to legally protected computer information, if this entailed the destruction, blocking, modification or copying of computer information, should be qualified under the totality of Part 1 of Art. 183 and art. 272 of the Criminal Code.

6. If the method of collecting information was bribery of officials or persons performing managerial functions in a commercial or other organization, then liability should arise under Part 1 of Art. 183 and art. 291 or part 1 or 2 of Art. 204 CC.

7. Disclosure - an action or inaction as a result of which information constituting a commercial, banking or tax secret, in any possible form (oral, written, other form, including using technical means), becomes known to third parties without the consent of the owner of such information or contrary to an employment or civil contract.

8. According to Part 2 of Art. 183 of the Criminal Code, liability arises for persons to whom this information was entrusted or became known through service or work.

The person to whom this information was entrusted should be considered the one who, by virtue of his position, has this information and uses it in the performance of his professional activities. A person to whom this information became known through service or work may be considered an employee to whom this information is not provided for use, but who became familiar with it in the performance of his professional duties.

Officials (prosecutor, investigator, tax inspector, etc.), private notary, private auditor who disclosed or used such information are liable for aggregation of crimes - under Part 2 of Art. 183 and under Art. 286 or 202 of the Criminal Code.

What is the receipt and disclosure of information constituting commercial, tax and banking secrets?

The criminal act punishable under Article 183 of the Criminal Code of the Russian Federation is the collection and disclosure of confidential data.

Collecting means illegally obtaining insider information: theft, bribery of an official, threats and other illegal means. For example, an attacker buys confidential data from a company employee.

Disclosure is the disclosure of information to third parties who do not have access to it. For example, a bank does not have the right to disclose information about the accounts and deposits of its clients.

The crime is considered completed from the moment the attacker begins to collect information. It does not matter whether he gained access to commercial, tax or banking secrets.

Who, according to Law No. 395-1, is responsible for the disclosure of bank secrecy

Persons and institutions that guarantee the safety of information that constitutes bank secrecy are listed in Art. 26 of the Law “On Banks and Banking Activities” dated December 2, 1990 No. 395-1. What information and by whom cannot be disclosed due to legal requirements is shown in the diagram:

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The following types of punishment are provided for a criminal act:

• a fine in the amount of 500,000-1,500,000 rubles;
• forced labor for a period of up to 2-5 years;
• imprisonment for up to 2-7 years.

In addition, a citizen may be deprived of the right to work in a certain position or carry out a specific type of activity.

The severity of the punishment depends on the consequences that occurred in connection with the commission of the crime. In case of major damage or forced bankruptcy of the company, the person may be sent to prison. If the act did not entail serious consequences, it is possible to requalify the composition under one of the articles of the Code of Administrative Offenses of the Russian Federation.

Criminal liability for disclosing bank secrets to third parties (Article 183 of the Criminal Code of the Russian Federation)

Art. 183 of the Criminal Code of the Russian Federation provides for penalties for illegal receipt and disclosure of information constituting bank secrecy in the form of:

• monetary penalty in the form of a fine;
• correctional labor;
• forced labor;
• imprisonment.

Find out in ConsultantPlus whether it is possible to fire an employee who has divulged a professional secret. Get trial demo access to the K+ system and upgrade to the Ready Solution for free.

A detailed breakdown of punishments under this article is presented in the diagram:

Learn about the responsibility of taxpayers in the tax sphere from the section “Tax Responsibility”.

About guarantors and custodians of banking secrecy

Subjects of legal relations involved in the protection, provision and use of bank secrecy are divided into the following groups depending on the grounds on which the information was received and what is the legal scope of the information:

1. Holders of information that is a bank secret. These are persons who have exclusive rights to use information relating to them at their own discretion. These are clients of banking institutions - their personal and commercial interests are protected by the institution of bank secrecy.
2. Information owners are credit institutions that acquire information subject to protection on the basis of client agreements. The client transmits information to the banking institution or creates it specifically during the execution of the contract. The transfer of information in this case is an additional factor, the purpose of which is to ensure that the banking institution can fulfill its contractual obligations. Owners of information have the right to use it, and in cases established by law, also the right to provide such information to a third party.
3. Users of information. They are provided with information that is a bank secret. Information owners provide them with it while fulfilling their professional (official) responsibilities. Users of information may have access to banking secrets only on legal grounds.

The banking law establishes:

1. Banking secrecy is guaranteed by credit institutions, the Bank of Russia and the organization performing the functions of compulsory deposit insurance (Deposit Insurance Agency).
2. All employees of a banking institution must keep secrets.
3. The Bank of Russia and the DIA do not have the right to disclose information received by them as a result of performing licensing, supervisory and control functions.
4. Auditing organizations do not have the right to disclose to third parties information obtained during the audit work they perform.
5. The authorized body involved in measures to combat the legalization (laundering) of proceeds from crime does not have the right to disclose information received from banking institutions to third parties (according to the law).
6. If the Bank of Russia, the DIA, and various other organizations disclose banking secrets, they are responsible and compensate for the damage caused.

The following persons must also observe a special regime of storage and access in relation to bank secrecy:

• Customs;
• tax authorities;
• exchange control authorities and agents;
• The Federal Service for Financial Markets is an authorized government body responsible for control and supervision of the activities of credit history bureaus.
• Federal State Statistics Service
• Federal Service for Financial and Budgetary Supervision.
• Other entities, such as prosecutors, inspectors of the Accounts Chamber, are obliged to observe the confidentiality of information in accordance with the general principle of “keeping secrets protected by law.”

The issue of providing information with client consent

If the client agrees to disclose banking secrets, the banking institution is released from liability for disclosing confidential information. Cases when bank secrecy is disclosed with the consent of the client are the provision of information to him or his representative, as well as to the credit history bureau - in accordance with the conditions and procedure provided for in the agreement between the banking organization and the BKI. The information provided to the BKI is determined using the Federal Law “On Credit Histories”.

At the same time, it is separately provided that the submission of information to the BKI (if the provisions of the law are observed) does not mean that official, banking, tax or commercial secrets have been violated. There is an amendment according to which it is possible to provide information related to bank secrecy in the BKI (as civil legislation says).

The issue of disclosing information that is a banking secret

A credit institution is obliged to provide information that is a bank secret only in cases prescribed by law.

Exceptions to banking secrecy may be based on grounds specifically established by law.

Article 857 of the Civil Code of the Russian Federation stipulates that information that is a bank secret can only be provided to the clients themselves or their representatives. State bodies and their officials may obtain such information only in cases and in the manner prescribed by law.

The most detailed list of such cases is contained in the Banking Law. At the same time, other federal laws establish the details of powers and the procedure for obtaining certain necessary information. Situations of providing information that is a bank secret are usually classified on various grounds.

The first classification criterion is whether the client of a banking institution agrees or disagrees to disclose this information.

The second case when bank secrecy can be provided depends on the order and form of their provision.

For example, disclosure may be affected by the following:

1. Special requests. They are carried out by government bodies, sending certificates or individual documents.
2. Reporting or other generalized documentation of a credit institution (auditors, Bank of Russia).
3. Notification procedure - here there is no need for a preliminary request from government authorities that there are certain circumstances provided for by law in relation to a certain banking client.
4. Financial Monitoring Committee - by virtue of legislative requirements, if established signs are identified.

The third basis for classification is the status of the person to whom the facts provided by the bank concern. Thus, the Banking Law provides for different criteria by which information about legal entities, individual entrepreneurs and individuals who are not individual entrepreneurs can be provided.

Now let's move on to the powers that various users of information that constitute bank secrecy have, as well as the reasons for which information is provided to them.

Disclosure of banking secrecy by tax authorities

Of course, the institution of bank secrecy is most important when it comes to the relationship between tax authorities and credit organizations. Tax authorities try to find out as much information as possible in the shortest possible time period from banking institutions. In turn, banking institutions should primarily be concerned with protecting client interests, since clients are the source of their well-being. Thus, there is an obvious conflict of interest.

According to the banking law, tax authorities can obtain information on transactions and accounts of legal entities and individual entrepreneurs. According to the Tax Code of the Russian Federation, tax authorities have quite broad powers with regard to obtaining information from banking institutions on the latter’s clients:

1. Banks open accounts for institutions and individual entrepreneurs only if a certificate of registration with the tax authority is presented.
2. Banks must report when an account of an institution or individual entrepreneur is opened or closed to the tax authority at the place of their registration. The period is five days from the moment such an account was opened or closed.
3. Banks must issue tax authorities certificates on transactions and accounts of organizations and citizens engaged in business activities without forming a legal entity. This is done in accordance with the legislation of the Russian Federation, within five days after a motivated request from the tax authority has appeared.
4. Tax authorities have the right to demand documents from banks. These documents must confirm that payment orders of taxpayers, fee payers and tax agents, as well as collection orders (orders) of tax authorities to write off tax amounts, penalties and fines from client accounts, have been executed.
5. If the tax authorities believe that the bank has all the documents they need, then they have the right to request these documents from the bank. This only applies if there are grounds for conducting an inspection against him.

Choosing between help and document

Judicial practice revealing banking disputes with tax authorities regarding the provision of banking information is the bulk of all judicial practice on banking secrecy in general. The relationship between the bank and the tax authority is often not so simple - it is often difficult to interpret the concepts of “certificate” and “document”, determining the acceptable form of providing information.

Thus, experts expressed the position that “a certificate is nothing more than reference information prepared specifically at a banking institution for the purpose of responding to a request. A document is a specific document (original, copy). It has identifying characteristics, it already exists at the time the request appears in the bank, and it is not produced specifically to respond to the request of the tax authorities.

According to Article 86 of the Tax Code of the Russian Federation, the bank is not obliged to provide any documents - only certificates. Request for documents can only be carried out by a tax authority official, guided by Article 87 of the Tax Code of the Russian Federation. This is possible if a counter tax audit is carried out or if it is necessary to confirm executed payment orders of taxpayers, fee payers and tax agents, as well as collection orders (orders) of tax authorities to write off tax amounts from the accounts of taxpayers, fee payers and tax agents, penalties and fines.

In a situation where a bank is a tax agent, it must submit to the tax authority at its place of registration a package of documents necessary in order to monitor the correctness of calculation, withholding and transfer of taxes, including documents protected under bank secrecy.

Judicial practice suggests that the bank, as a tax agent, is obliged to disclose information relating to individuals. Thus, in one case, the arbitration court stated that according to clause 1 of Article 93 of the Tax Code of the Russian Federation, the plaintiff is a tax agent and if the official conducting the tax audit requires it, he is obliged to provide all the necessary information. This also includes information that is a bank secret. The court believes that in this case, the institution of tax secrecy must keep the secret of an individual’s contribution.

Disclosure of bank secrecy to law enforcement agencies

The Banking Law establishes that the provision of information on transactions and accounts of legal entities and individual entrepreneurs to law enforcement agencies must be carried out if two conditions are met:

1. The information directly relates to a matter within the competence of that authority.
2. The prosecutor agrees.

If these are tax crimes, according to the law, bank secrecy can be disclosed even without the initiation of a criminal case. Thus, it is stipulated that certificates on transactions and accounts of legal entities and individual entrepreneurs are issued to internal affairs bodies by a credit organization if they identify, prevent and suppress tax crimes.

If this is a pre-trial proceeding, bank secrecy can be obtained by carrying out investigative actions (in the manner established by the Code of Criminal Procedure of the Russian Federation). Documents with information about clients’ deposits and accounts in banking institutions can only be retrieved by a court decision. The Constitutional Court extended these requirements of the Code of Criminal Procedure of the Russian Federation also regarding a search - if during its conduct bank documents are confiscated, since “the requirement to make a seizure ... only based on the results of a court decision is due not to the peculiarities of the investigative action of the same name carried out for these purposes, but to the specific nature of the contents contained in the seized items and information documents." Therefore, a court decision is necessary in any case - and it does not matter at all whether it is a search or seizure.

The legislation of the Russian Federation does not contain special instructions on when the courts should give permission for access to banking information, and which should be denied. It is believed that this issue should be resolved depending on the degree of validity of the investigator’s suspicions and should be decided by the court.

Disclosure of bank secrecy to bailiffs

According to banking law, bailiffs do not have the right to access bank secrets. The federal law “On Bailiffs” does not contain special provisions on the procedure for accessing banking information. They only have a general right “to receive, by performing executive actions, the necessary information, explanations and certificates.” As a result, the Constitutional Court of the Russian Federation recognized that bailiffs have the right to request and receive from banking institutions the necessary information about the deposits of individuals. Logically speaking, all these rules apply equally to legal entities and individual entrepreneurs.

At the same time, the resolution identifies three qualifying features of this right:

1. Exercising the right in connection with the execution of a court order.
2. Realization of rights within the limits determined by a court ruling.
3. The provision of information is carried out only in the amount that is necessary to execute the writ of execution.

How do banking and trade secrets relate?

According to some researchers, banking secrecy is a special type of commercial secret. This position is contestable, since there are significant differences between banking secrecy and commercial secrecy.

1. Banking secrecy is legal and does not depend on the will of the subjects of legal relations regarding its protection. A trade secret, on the contrary, is a one-sided announcement. Bank secrecy, according to the law, has its own content, subjects, and procedure for provision.
2. The most important feature of banking secrecy is the fact that the client provides confidential information to the bank in order to ensure the proper provision by the bank of certain services under an agreement with the client. Thus, the transmitted information is of an auxiliary nature in relation to the agreement concluded between the credit institution and the client. According to this agreement, the bank must maintain banking secrecy - this is also part of its obligations.
3. The obligation to protect bank secrecy is quite relative: one obligated person (credit institution) is opposed to one authorized person (the client). On the contrary, if the secret is commercial, then the security relationship is absolute: one authorized person (he is considered the owner of the information) is opposed by unidentified persons who are obliged to protect this information.

1. A mandatory feature of a trade secret is that its owner must take measures to protect its confidentiality. In other words, the holder of a trade secret is always concerned with protecting it, based on his own personal interests. For bank secrecy, the following fact is important - they are obliged to protect the confidentiality of information only for the owners and users of information in the interests of the owner (and not for the owner of the information himself).
2. A trade secret may be the subject of a transaction (for example, such information may be transferred to another person for a certain amount of money). Banking secrecy cannot be transferred in transactions with third parties.

How to prove disclosure of trade secrets

In order for the guilty employee to bear criminal or administrative liability, the following two conditions must be met:

1. The company has taken measures to protect commercial information from disclosure.
2. The employer proved that a specific employee, for one purpose or another, disseminated information that is considered a trade secret.

To hold an employee accountable, the following actions must be taken:

1. Establishment by the employer of the fact of disclosure of trade secret information based on evidence.
2. Conducting an investigation within the enterprise by a specially created commission.
3. Sending a written request to the employee who is suspected of disclosure with a requirement to provide an explanation.
4. In the absence of written explanations from the employee, drawing up an appropriate act.
5. The commission makes a decision to bring the employee to administrative or criminal liability.

Criminal law is based on the principle of the presumption of innocence. Based on this, the employer must provide the court with compelling evidence that the employee disclosed a trade secret.

The following facts may be direct evidence of disclosure:

• Discovery of documents containing trade secrets in the possession of an employee in circumstances not related to the labor process, including outside the enterprise.
• Video materials obtained using CCTV cameras, where the fact of disclosure was recorded.
• Recording the sending of secret data by e-mail or copying it to external storage devices, if this is prohibited by the internal documents of the organization.
• Witness testimony of the transfer of classified commercial information to third parties.

Judicial practice: sentences and punishment under Art. 183 of the Criminal Code of the Russian Federation

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• Decision of the Supreme Court: Determination N 203-APU17-21... THE SUPREME COURT OF THE RUSSIAN FEDERATION Case No. 203-APU17-21 APPEAL DECISION Moscow August 31, 2022 Judicial Collegium for Military Personnel of the Supreme...
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• Judicial Collegium for Criminal Cases, appeal:... THE SUPREME COURT OF THE RUSSIAN FEDERATION Case No. 72-APU 17-21 APPEAL DECISION Moscow October 04, 2022 Judicial Collegium for Criminal Cases...
• Decision of the Supreme Court: Determination No. 56-КГ16-46 dated... THE SUPREME COURT OF THE RUSSIAN FEDERATION No. 56-КГ16-46 DETERMINATION Moscow March 6, 2017 Judicial Collegium for Civil Cases of the Supreme Court...