Responsibility of an employee for disclosure of trade secrets

If an employee of the company discloses this information, he may face criminal liability under Article 183 of the Criminal Code of the Russian Federation. Article 183. Illegal receipt and disclosure of information constituting commercial, tax or banking secrets

1. Collecting information constituting commercial, tax or banking secrets by stealing documents, bribery or threats, as well as in any other illegal way –

shall be punishable by a fine in the amount of up to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to one year, or by correctional labor for a term of up to one year, or by forced labor for a term of up to two years, or by imprisonment for the same term.

2. Illegal disclosure or use of information constituting commercial, tax or banking secrets, without the consent of their owner, by a person to whom it was entrusted or became known through service or work, –

shall be punishable by a fine in the amount of up to one million rubles or in the amount of the wages or other income of the convicted person for a period of up to two years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or by corrective labor for a term of up to two years, or by forced labor. for a term of up to three years, or imprisonment for the same term.

3. The same acts that caused major damage or were committed out of selfish interest, –

shall be punishable by a fine in the amount of up to one million five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to three years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or by forced labor for a term of up to five years, or imprisonment for the same period.

4. Acts provided for in parts two or three of this article, which entailed grave consequences, –

shall be punishable by forced labor for a term of up to five years or imprisonment for a term of up to seven years.

Keep in mind: in order for information important to a company to acquire the status of a trade secret, several conditions must be met. First, the manager must approve the list of information and documents that constitute a trade secret for the company. Then it is necessary to exclude free access to such information and take measures to protect it. To do this, at a minimum, it is necessary to approve the rules for handling secret documents, the rules for accessing them, as well as the procedure for monitoring compliance with these rules.

Employment contracts with employees and business contracts with counterparties must include a clause on liability for disclosure of trade secrets. In this case, the employee must be familiarized with a list of secret information against receipt, and in the business agreement it is necessary to indicate which information is a trade secret.

Each material medium of secret information (for example, a document, a floppy disk) must be stamped “Trade Secret”.

If these conditions are not met, the investigator will not be able to hold the employee criminally liable for disclosing information important to the company.

Who is responsible

By law, companies can be held liable for the disclosure of secret information:

• employees who violated the terms of the employment contract on non-disclosure of certain information.

EXAMPLETwo employees of a large machine-building plant copied and removed from the territory of the plant documents that contained the latest developments in the field of mechanical engineering. constituting commercial, tax or banking secrets";

• business partners, if the agreement with them stipulates a non-disclosure of trade secrets;
• any person who disclosed secret information by obtaining it illegally (for example, stole documents, hacked a database, etc.).

What is bank secrecy?

This concept is explained by the Civil Code of the Russian Federation in Article 587 and Federal Law No. 395-1, adopted on December 2, 1990, in Article 26. Moreover, there is no exact definition of the term; it only talks about its essence. The Bank of Russia, any credit organization in the country, as well as an organization performing the function of compulsory deposit insurance, undertake obligations regarding non-disclosure of confidential information. It includes information about monetary transactions, deposits and accounts of clients and correspondents.

The Civil Code of the Russian Federation provides clarification in Article 857. Thus, the scope of banking secrecy also includes information about bank deposits and accounts, account transactions and information about the client.

Features of initiating a criminal case

Police investigators are investigating this crime. They can initiate a criminal case only upon the application of an entrepreneur who has suffered from the disclosure of a trade secret. In the application, he needs to indicate what information the employee disclosed and why it is so important for the company.

During the pre-investigation check, the police officer will find out whether the person worked at the company and whether he had access to classified information. Then the investigator will determine whether the employee knew what information was secret and whether he was obliged to keep the secret.

To do this, the investigator will familiarize himself with the employment contract, agreement on non-disclosure of trade secrets, and the procedure for using secret information at the enterprise. Then the investigator will decide whether to initiate a criminal case or not.

Features of the investigation

Investigative actions depend on the information disclosed by the employee. But there are general events that are held in any case.

First, the investigator will interrogate the victim. He will find out what specific information the suspect disclosed, in what way, under what circumstances. The investigator must be sure that the employee actually learned the information on duty, and did not accidentally see some documents or files. Then the police officer will find out whether the company complied with the trade secret regime. If not, then he will not be able to attract an employee. The investigator will also find out what consequences could have occurred due to the disclosure of the secret.

Secondly, the police officer will seize an employment contract with an employee, an agreement on non-disclosure of trade secrets, Regulations on trade secrets, Rules for the use of information that constitutes a trade secret, etc. In addition, the investigator may confiscate documents on technology and plans development of production, inventions, etc.

If damage was caused, the investigator will order an examination. The expert will determine the economic benefit that the information could have brought (that is, lost profits) and the material damage that the information leak caused. For the same purpose, the investigator will order a documentary and accounting audit.

The rest of the investigative steps will depend on what information the suspect divulges.

EXAMPLE At JSC Aktiv, auditors conducted an audit. The documents they reviewed contained information in what proportions the paint components should be mixed. Thanks to this technology, it lasted longer than other manufacturers. After some time, paint with the same properties, but different) and under a different name appeared on the market. The director of Aktiva was unable to independently find out who disclosed the trade secret, and wrote a statement to the police. The investigator opened a criminal case. During the investigation, he established that the information could have been disclosed by the auditor. Therefore, he seized all audit documents from the JSC. Then he conducted a search at Passive, interrogated its employees, as well as all the auditors who checked Active, and brought one of them as an accused.

Commentary on Article 183 of the Criminal Code of the Russian Federation

Commentary edited by A.V. Brilliantova

This article provides for criminal liability for the commission of two acts that differ from each other in the objective aspect and subject of the crime.

The object of the crime is the established procedure for handling information constituting commercial, tax or banking secrets.

Federal Law of July 29, 2004 N 98-FZ “On Trade Secrets” in Art. 3 defines that 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.

The content of a trade secret consists of information of any nature (production, technical, economic, organizational, etc.), including the results of intellectual activity in the scientific and technical field, as well as information about the methods of carrying out professional activities:

1) which have actual or potential commercial value due to their unknownness to third parties;

2) to which third parties do not have free access legally;

3) in respect of which the owner of such information has introduced a trade secret regime.

The holder of a trade secret is a person who legally owns information constituting such a secret, has limited access to this information and has established a trade secret regime in relation to it. This regime consists of taking the necessary measures to protect the confidentiality of information:

1) determination of its list;

2) restriction of access to it;

3) accounting of persons having access and (or) persons to whom such information was provided or transferred;

4) regulation of relations regarding the use of information constituting a trade secret by employees and contractors on the basis of contracts (labor, civil law);

5) affixing on material media (documents) the stamp “Trade secret” indicating its owner (for legal entities - full name and location, for individual entrepreneurs - last name, first name, patronymic of the citizen who is an individual entrepreneur, and place of residence).

Information for which the trade secret regime is not established is not considered confidential.

Information that cannot constitute a trade secret is provided for in Art. 5 of the said Law (information about constituent documents; about the number of employees, about working conditions; about employers’ debts in paying wages; about violations of the legislation of the Russian Federation and facts of prosecution for committing these violations, etc.).

According to Art. 102 of the Tax Code of the Russian Federation, tax secret consists of any information about a taxpayer received by state authorities (tax, internal affairs, state extra-budgetary fund, customs), with the exception of information: information that is publicly available, including that which became so with the consent of its owner - the taxpayer; about the taxpayer identification number; on violations of legislation on taxes and fees and penalties for these violations; provided in accordance with international treaties (agreements); provided to election commissions in accordance with election legislation based on the results of checks by the tax authority of information about the amount and sources of income of the candidate and his spouse, as well as about the property owned by the candidate and his spouse.

Information that constitutes a tax secret received by government agencies is subject to a special storage regime. Access to them is permitted to officials determined respectively by the federal executive body authorized for control and supervision in the field of taxes and duties, the federal executive body authorized in the field of internal affairs, the federal executive body authorized for control and supervision in the field of customs affairs .

Bank secrecy is non-disclosed information about a bank account and deposit, account transactions and information about the client (Article 857 of the Civil Code of the Russian Federation and Article 26 of the Federal Law of December 2, 1990 N 395-1 “On Banks and Banking Activities” ).

Information on transactions and accounts of legal entities and citizens is issued by a credit institution without their consent only in cases provided for by law.

The objective side of the crime provided for in Part 1 of Art. 183 of the Criminal Code of the Russian Federation, is expressed in the action of collecting information that constitutes commercial, tax or banking secrets.

Collecting information is obtaining information through overcoming the legal, organizational, technical and other measures taken by its owner to protect the confidentiality of this information. This information can be in the form of a thing or on a floppy disk, in the form of a drawing, model, technology, formula, symbols, technical solutions, etc.

The list of ways to collect information is not limited by the disposition of the article (for example, theft of documents, bribery, threats), the main thing is that they are illegal.

Theft of documents can be carried out in any way (for example, theft, robbery).

The theft of official documents containing information constituting commercial, tax or banking secrets is fully covered by this article and does not require qualification in conjunction with Part 1 of Art. 325 of the Criminal Code of the Russian Federation

Bribery is understood as the transfer of property to a person or the provision of services of a property nature to him for the acquisition of relevant information in connection with the official position held by this person.

Bribery carried out against an official or a person performing managerial functions in a commercial or other organization is qualified in conjunction with Art. 291 of the Criminal Code of the Russian Federation and, accordingly, Art. 204 of the Criminal Code of the Russian Federation

Other illegal collection of information may include, for example, the use of listening devices and other technical means for these purposes.

Information is considered lawfully collected in the following cases:

1) if it is disclosed by its owner;

2) to which there is free access;

3) received by a person while carrying out research or systematic observations;

4) received from its owner on the basis of an agreement or other legal basis.

The act is completed at the moment of collection of information constituting commercial, tax or banking secrets, in any illegal way. The corpus delicti is formal.

The subjective side of the crime provided for in Part 1 of Art. 183 of the Criminal Code of the Russian Federation, is characterized by guilt in the form of direct intent. The person is aware that he is illegally collecting information that constitutes commercial, tax or banking secrets, and wishes to do so.

Motives and goals do not matter for qualifications. However, this information may be collected for the purpose of using it in competition or for other personal interests.

The subject of the crime under Part 1 of Art. 183 of the Criminal Code of the Russian Federation - a sane individual who has reached the age of sixteen years.

The objective side of the crime provided for in Part 2 of Art. 183 of the Criminal Code of the Russian Federation, is expressed in actions (inaction) - illegal disclosure or use of information constituting commercial, tax or banking secrets, without the consent of their owner.

Illegal disclosure of information is the transfer or communication to at least one person (who does not have legal access to it) of information constituting a commercial, banking or tax secret in any possible form (oral, written, including using technical means). For example, an operator at a credit institution tells an entrepreneur he knows how much money is in his competitor’s bank accounts.

The illegal use of information constituting commercial, tax or banking secrets means their use in any form and sphere (business, household). For example, the use of such information when making transactions, registering commercial organizations and in their financial and economic activities.

The crime is completed at the moment of commission of any act specified in the disposition of the article. The corpus delicti is formal.

The subjective side of the crime provided for in Part 2 of Art. 183 of the Criminal Code of the Russian Federation, is characterized by guilt in the form of direct intent. The person is aware that he is illegally disclosing or using information constituting commercial, tax or banking secrets without the consent of their owner, and wishes to do so.

A special subject of a crime is a person to whom the secret was entrusted or became known through service or work, and who has reached the age of sixteen. These persons may be employees of government agencies (tax, internal affairs, prosecutor's office, court, customs), employees of credit and other commercial organizations, notaries, lawyers.

Disclosure of information constituting a commercial, tax or banking secret by a person to whom it became known by accident or mistake does not constitute a crime under Part 2 of Art. 183 of the Criminal Code of the Russian Federation

Qualifying signs of a crime under Part 2 of Art. 183 of the Criminal Code of the Russian Federation, – causing major damage and committing an act out of selfish interest (see commentary to Article 170 of the Criminal Code of the Russian Federation).

In accordance with the note to Art. 169 of the Criminal Code of the Russian Federation, major damage is understood as a monetary amount exceeding one million five hundred thousand rubles. On the qualitative side, the damage is expressed in property losses of the owner of the secret (for example, costs associated with the re-equipment of production) and lost profits (for example, lost profit as a result of the loss of the market for the product).

Officials who illegally disclosed information constituting commercial, tax or banking secrets, which became known to them through their service, in exchange for a bribe, are also subject to liability under Art. 290 of the Criminal Code of the Russian Federation

Part 4 art. 183 of the Criminal Code of the Russian Federation establishes criminal liability for committing a crime provided for in Parts 2 and 3 of the commented article, which entailed causing grave consequences.

Grave consequences are an evaluative concept that is established by the court in each specific case, taking into account all the circumstances of the case. For example, they may mean causing extremely large damage to an organization or its bankruptcy, serious illness or suicide of the victim.

A causal connection must be established between the act and the resulting major damage and (or) grave consequences.

Measure of responsibility

If a person illegally discloses a trade secret to which he was allowed to access at work, he faces (Part 2 of Article 183 of the Criminal Code of the Russian Federation):

• a fine of up to 1,000,000 rubles;
• or a fine in the amount of wages or other income of the convicted person for a period of up to two years with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years;
• or correctional labor for up to two years;
• or forced labor for up to three years;
• or imprisonment for a term of up to three years.

If a person discloses secret information, having obtained it illegally (for example, stole documents, hacked a database, etc.), he faces:

• a fine of up to 500,000 rubles;
• or in the amount of wages or other income of the convicted person for a period of up to one year;
• or correctional labor for up to one year;
• or forced labor/imprisonment for up to two years.

If, by divulging a trade secret, the culprit caused major damage to the company (more than 1,500,000 rubles), then the punishment is more severe:

• a fine of up to 1,500,000 rubles;
• or in the amount of wages or other income of the convicted person for a period of up to three years with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years;
• or forced labor/imprisonment for up to five years.

The most severe punishment is provided for the disclosure of classified information that entails grave consequences: forced labor for up to five years, or imprisonment for up to seven years. Serious consequences include bankruptcy of a company, deterioration of its financial position, ruin of an individual entrepreneur, etc.

PRIMERIvanova, an employee of a pharmaceutical company, sold information about the development of a new drug. The company illegally obtained a license for its production, and soon the drug went on sale in a limited batch. It later turned out that this caused not only damage to the company where Ivanova worked, but also harm to health those who bought the medicine and took it. Ivanova did not know that during the latest experiments, the company’s workers came to the conclusion that the medicine had a bad effect on the stomach. Scientists were going to make changes to its composition. The investigator opened a criminal case against Ivanova for disclosing a trade secret, which entailed grave consequences.

European banks with the highest data protection

The principle of bank secrecy is fully observed only in some European countries:

1. Austria . The level of protection of bank secrecy in Austrian institutions is very high. The employees are especially sensitive to even new clients. This is explained by the fact that if the government discovers a fraudster on the list of persons served, the bank’s reputation will greatly deteriorate. Therefore, all clients of Austrian banks undergo a thorough background check. Institutions are more loyal to those clients who have a residence permit in Austria. But even legal companies that are registered in the Russian Federation can open accounts in Austrian banks. Now it is almost impossible to achieve the disclosure of banking secrecy in this country, so such cases occur extremely rarely.
2. Switzerland . Banking secrecy is one of the most important aspects for Switzerland. Many wealthy individuals and companies open accounts in Swiss banks, as they are guaranteed complete confidentiality of data. But the verification of potential clients when opening accounts is very thorough. They are more loyal to clients with a residence permit in Switzerland. Only the most suspicious account transactions may be disclosed.

In other European countries, the level of security for banking data is not as high. To obtain information from banks in Switzerland and Austria, you need to provide a court decision on the existence of a crime. After this, a request is submitted to the banking institution. Bank officials review this request and make a positive or negative decision regarding the disclosure of data stored in the bank of these countries.

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about the author

Klavdiya Treskova is an expert in the field of financial literacy and investment. Higher education in economics. More than 15 years of experience in banking. He regularly improves his qualifications and takes courses in finance and investments, which is confirmed by certificates from the Bank of Russia, the Association for the Development of Financial Literacy, Netology and other educational platforms. Collaborates with Sravni.ru, Tinkoff Investments, GPB Investments and other financial publications. [email protected]

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What do the courts do?

The trial for this crime is being held behind closed doors. This means that no one except the participants in the process can attend it. This measure is needed to prevent unnecessary people from learning a trade secret.

There are very few convictions. As practice shows, cases under this article are rarely initiated. Law enforcement agencies themselves do not show initiative. And the management of the company cannot complain about its employee, because it will have to explain to the investigator what secret information the employee disclosed and for what purpose.

In addition, entrepreneurs often do not draw up documents on trade secrets (list of secret information, non-disclosure agreements, access provisions, etc.). Therefore, the court simply cannot impose criminal liability for the disclosure of information important to the company: formally, it has not acquired the status of a trade secret.

Keep in mind: an employee can be fired for disclosing a trade secret (clause “c” of paragraph 6 of Article 81 of the Labor Code of the Russian Federation). In addition, the employer has the right to recover damages from him in full (clause 7 of article 243 of the Labor Code of the Russian Federation). True, damage in this situation refers only to direct losses. Lost profits cannot be recovered from an employee (with the exception of the head of the company). This is prohibited by the Labor Code (Article 238). And losses from the disclosure of trade secrets are expressed mainly in lost profits, that is, in the income that the company could have received if the secret had been kept.

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What information banks do not disclose

The following information is considered banking and commercial secrets:

1. Personal information of clients - passport, contact details, details of legal entities.
2. User bank account information. Type of open accounts, date of registration, amount of money stored, income and expense transactions, presence of foreign currency accounts, balance and income/expense of funds on them.
3. Information about deposits of individuals - amount in deposit, validity period, interest rate.
4. Operations and transactions that are carried out in favor of the client.
5. Information about clients’ commercial projects or trade secrets that became known to the bank from the documentation provided.
6. Loan applications approved and rejected. Reasons for loan refusal and other analytical data on assessing the client’s financial condition.
7. Reporting information of banks, excluding those published on the website.
8. Information about client income and expenses.
9. Methods for encrypting data in a bank.
10. Methods of protecting information and any other additional information that is regulated within the company.

The Criminal Code of the Russian Federation provides for punishment for disclosing bank secrets.

Banking institutions request from individuals and legal entities certain information according to an internal list:

• identity card - passport or equivalent document;
• information about persons who act on behalf of the legal entity. persons without a power of attorney;
• Contact details;
• confirmation of financial status;
• data on the amount of authorized capital;
• originals of licenses for carrying out licensed activities;
• data on the presence or absence of legal entities. persons at the place of registration.

Some data is not included in banking secrecy, as it is in the public domain. For example, the amount of authorized capital or the number of persons who do not have a power of attorney, but who act on behalf of the legal entity. faces. This data is posted on the Federal Tax Service website. But if the information is in the public domain, bank representatives send it to you, but do not provide it themselves.