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Commercial mystery of the organization and the mechanism of its collateral. What is a commercial mystery? Ways to protect secret information

Divorce
25.12.2020

Introduction

commercial mystery law

Maintenance economic activity Modern companies and firms are directly related to information - with its acquisition, time, storage and subsequent implementation and application for the production of products, the provision of services and other operations, the result of which at the initial stage is reduced to one - receiving additional profits and advantages over competitors in the market niche .

However, not all ideas are destined to be completed - some undertakings on the development of a new direction of the activities of companies enter the dead end and do not bring the expected profits only for one reason - the leakage of information. The leakage of information that is important for the company or its individual officials can cause not only a decline in profitability, but can also bring the company (even large) before bankruptcy. It is for this reason that the commercial secrets of enterprises are guarded no less carefully than passwords access to settlement accounts in banks.

The purpose of this work is to conduct a study of the concept of commercial secrets and methods of its protection. To achieve the goal, it is necessary to solve the following tasks:

) Determine the concept of commercial secrets,

) consider distinguishing signs of commercial secrets,

) to explore the basic methods of protecting commercial secrets,

) Investigate ways to protect commercial secrets in enterprises.

The object of the study is a commercial mystery. The subject of the study is the essence of commercial secrets and ways to protect it. The literature of many authors was used to write this work and solving the tasks.

Chapter 1. Concept and essence of commercial mystery

1 Concept of commercial secrecy

There are many definitions of the concept of commercial secrets, but they all reduce to one - commercial secret and confidential information are:

· Commercial information;

· Mystery of production;

The organizational and managerial activity of the enterprise in turn, to the commercial information refers to information:

· Information on consumers, customers, intermediaries; banking relations, loans, debts;

· Accounting and financial reports;

· Expected volume of commercial activities and development plans, information about the meeting;

· Payroll information;

· Business correspondence;

· Information on concluded agreements (contracts), proposals for their conclusion;

· Terms of contracts.

Also important for industrial, and any manufacturing enterprise and firms are the secrets of production - "know-how":

· Methods and methods of legal implementation of the enterprise;

· Knowledge related to the development, maintenance, creation, operation, repair of new equipment, technology, management, financial, economic, etc. character.

trade secret - From a legal point of view, not just information, but a mode that, according to Art. 10 Federal Law No. 98 of July 29, 2004, is considered to be established only after adopting the owner of information constituting a commercial secret (hereinafter - information), certain legal measures. Measures aimed at consolidating the right to protect the information that he considers significant to achieve his commercial goals and contributes to the development of its activities. Such measures are defined in paragraph 5 of the Federal Law of 11.07.2011 No. 200-FZ. In the business environment until the commission of commercial secrets is established, by complying with the procedure for designated below, it is practically meaningless of disputes on its protection.

Definition of the list of information.

Actually, the information itself. The object itself, which needs to be protected to implement its business goals. An element that is not always unequivocal. The use of such information can, how to increase the capital of the entrepreneur, so to turn it into a clean accounting list. Such information can be attributed to any, which meets the objectives and objectives of a specific subject of commercial activities. For example, information that contains information on how the client database or simply its contents can work. Methods, order and general methodical concept of conducting a particular type of business. In this case, we are talking about information technologies, and, therefore, the information will be appropriate. It is necessary to take into account those methods and solutions that are relevant for this sphere.

Incorrectly designated legal protection objects can simply not get it. How can it be protected to be protected, as well as it is pointless to protect what valuables are not. Throwing only superfluous and indicating only significant, according to the method of the Italian Creator, it is possible to make an effective document in this area.

I will say straight and without unnecessary Bhahlism that we have experience in this area - from one-room web design studios to IT companies, as part of which the Optimization / Advertising and Development Departments.

Restricting access to information by establishing the procedure for using it and monitor compliance with this order.

In this case, there is a mixing of corporate and information legal areas. It is necessary to make up local acts, which can later be referred to in the event of controversial situations. By itself, correctly verified mode of operation leads to an increase in the legal culture of a particular business, its strength, defense capability and immunity to corporate aggression from the outside. It is not rare, using the data that is to some extent commercial secrets, and hostile absorption or worse mergers occur.

These internal corporate acts will refer to all subsequent civil law / labor agreements, which should also be developed in accordance with the requirements of the law and the meaning of business in the IT industry.

Accounting for people who have access to information and (or) persons with which it was transferred or is provided to use and regulate the procedure for using it.

A legal document information block containing provisions governing the use of information by persons with access to it. It needs to determine the list of persons who, one way or another, are involved in circulation of information. Such people naturally belong to working on the basis of labor contracts, personnel and counterparties of civil law transactions that can have access to information. It is necessary to make a legal point of view of competent civil law / employment agreements with each of the defendants of the list that will regulate the procedure for handling information. In order for such documents to be effective than formal, they should be a profile lawyer, based on the letter of the law, its own experience and judicial practice Resolution disputes related to the disclosure of information. It should be noted that the definition of a list of persons who will participate in the circulation of information, is one of the key conditions in establishing a commercial secrecy regime. For, in this way, the subjects of possible legal disputes are immediately determined in this area and the responsibility establishes, which in turn will help to correctly control the employee at a particular area of \u200b\u200bits work.

Also, legislation establishes the need to apply to material carriers (documents) containing information, the "commercial mystery" griev with the owner of this information (for legal entities - Complete name and location, for individual entrepreneurs - surname, first name, patronymic of a citizen who is an individual entrepreneur, and place of residence).

The subject of "commercial secrecy" is information related to the commercial and economic activities of the enterprise: production and technological information, information on management, finance and other activities. These may be documents of commercial negotiations of the enterprise and methods of pricing, documents related to marketing market research, information about the organization of labor and selection of employees, information on the conditions for storing documents, i.e. Information possessing a commercial value.

Subjects of "commercial secrecy" are:

) Business entrepreneurial activity;

) staff, employees of the entity entrepreneurial activity;

) Officials of state organizations and bodies that conduct an inspection of the enterprise.

The entity of entrepreneurial activity is the owner of information constituting commercial secrets, both legal entities and individuals are entrepreneurs. For the convenience of presentation, in the following text, we will refer to both categories of entrepreneurship entities by entrepreneurs.

The organizational form and form of ownership do not matter to attribute the entity of the right to the category of entrepreneurs. The main thing is that the activities exercised by such a person have been aimed at making a profit, which was commercial, and this was recorded in the constituent documents (if the presence of such is a prerequisite for the implementation of entrepreneurial activities). The composition and amount of information constituting commercial secrets, the procedure for working with them and their protection is determined by the entrepreneur on its own.

Employees have the right to enjoy information that make up a commercial secret to fulfill their employment duties. The degree of access of each of the workers to such information is determined by the entrepreneur independently, and the conditions for the use of documents approved by the entrepreneur, and the employment contract (contract).

1.2 Features Commercial mystery

For any modern enterprise, one axiom is valid (which will help prevent unauthorized transmission. confidential information): All information that make up commercial mystery and confidential information should be transferred to third-party organizations, government agencies (according to their competence) and individuals only with the sanction of the company's head. The transfer process is issued by the protocol. This information is transmitted only to writing And only on written requests.

According to current legislation, the disclosure of commercial secrets and confidential information is to familiarize the employee of the company to which this information was brought to installed manner or became known in connection with the performance of official duties, other legal or individuals Without the sanction of the head of the enterprise with the information constituting a commercial secret, if it entailed or could cause harm to the enterprise.

To the employee of the enterprise, due to the fault of which it became possible to transfer confidential commercial information to be applied as disciplinary responsibility, in accordance with the internal manuals and provisions, up to dismissal in accordance with labor law on the basis of the terms of the contract and criminal liability - in case of causing significant material damage or damage to the image and reputation of the enterprise.

Under the confidentiality of information is understood as the introduction and maintenance of special measures to protect information.

Disclosure of information component of a commercial secret - action or inaction, as a result of which the information constituting a commercial secret in any possible form (oral, writing, other form, including using technical means) It becomes known to third parties without the consent of the owner of such information or contrary to a labor or civil law agreement.

For disclosure (intentional or careless), as well as for the illegal use of information constituting commercial secrecy, liability is provided - disciplinary, civil-legal, administrative, criminal and material. Material responsibility comes regardless of other forms of responsibility.

All information that can represent a commercial secrecy can be combined into groups (Fig. 1).

Fig. 1. Classification of information constituting commercial secrets

The assignment of certain information on commercial secrecy should meet the following requirements:

· them open use may cause damage;

· The company can ensure their confidentiality;

· This information needs to be protected, the gap as they are not a state secret and are not protected by a patent;

· Their concealment does not harm society.

Basic signs of commercial mystery

1. Commercial value of information and its unknown to third parties. The unknown to third parties means that the information should not be well known.

2. Well-known information, even if it has a large commercial value, in principle can not be considered a commercial secret. But there are exceptions, for example, such information will be considered a commercial secret if there are knowledge, when using a large economic benefit;

Lack of access to information on legal basis. In this context, the access is understood as the possibility of obtaining information constituting commercial secrets, based on legislative or contractual norms for use in the purposes specified in these norms.

Confidentiality Privacy Policy

Failure to fulfill the confidentiality requirement negates the first two signs. If the information is not contained in the secret, it is available at least access to it is significantly facilitated. Thus, the condition ceases to be carried out that "there is no free access to the legal basis." And if information becomes affordable, then it loses the quality of commercial value.

Chapter 2. Ways to protect commercial secrets

1 Basic Methods for Protection of Commercial Secrets

Industrial espionage has always been one of the means of competitive struggle. Therefore, it is not surprising that a whole legislative institution has been developed in the entrepreneurial right - "Commercial Mystery". By receiving special protection, this sub-sectoral right operates with special concepts, means of application and tools of confidentiality settling.

The first is the secrets of production, or (on the Western manner) know-how. Also in certain scientific papers (For example, in the theory of prof. Pelica A.S.) they are called technological and scientific and technical information.

The second is business information. This section should include plans for the development of the enterprise, the redistribution of financial flows, the results of marketing research, the formation of business reputation and ways to promote goods or services in the domestic or foreign market.

This approach is characteristic of economic position. But the lawyers limit the list of what commercial secrets can gain. This provision implies the introduction of a ban on classifying the following information:

Documents that ensure the functioning of the enterprise (statutory documents, licenses, authorization, a list of persons with the right to represent the interests of the enterprise without presentation of power of attorney, etc.).

Information reflecting employment at the enterprise, as well as the level of labor payments.

Documents on the impact of the production of goods and / or environmental services.

Documents regulating the activities of state or municipal enterprises.

Information about the identified and proven facts of violation of legislation. These provisions are regulated by Article 5 of the FZ "On Commercial Secret".

Based on all of the above, it can be concluded that a commercial mystery is the right to refuse to access business and scientific and technological information to the company to third parties except in cases, strictly regulated by law.

And, accordingly, if there is the right to refuse, it means that there should be the right to defense against illegal encroachments on the hidden information.

Speaking about the methods of its protection against illegal encroachments, lawyers traditionally allocate two ways: extrajudicial and judicial.

The first defense method actually consists in totality of receptions, the use of which reduces the risk of obtaining information included in the commercial secret.

The second method is aimed at eliminating the consequences of disclosing closed business and scientific and technological information. Protection of commercial secrets in this case is carried out by means of a claim in arbitration judicial instance. In this case, the person affected by malicious actions may require compensation for material damage, restoring the existing situation or imposition of the prohibition of information dissemination, both explicit and hidden way.

Summing up, it should be said that commercial mystery - special InstituteThe consideration and strengthening of which is the subject of the joint of two sciences - economic and legal. Therefore, the development of legal protection of business and scientific and technological information plays a significant role in the struggle for the consumer.

It was classically believed that providing information security develops from three components: confidentiality, integrity, accessibility. Points of application process of information protection to the information system are hardware, software and communication (communications). The procedures (mechanisms) of protection are divided into physical level protection, personnel protection and organizational level.

Privacy (from English Confidence - Trust) is the need to prevent leakage (disclosure) of any information.

Integrity of information (also the integrity of data) - informatics and theory of telecommunications, which means that the data is full, the condition that the data has not been changed when performing any operation on them, be it transmission, storage or presentation.

The availability of information (information system resources) is to avoid temporary or constant concealment of information from users who have received access rights.

Consulting Agency for Business Safety Leopold AG provides a full range of measures to protect your interests:

Technical protection is a set of activities and (or) protection services from unauthorized access, including on technical channels, as well as on special impacts on it for destroying, distorting or blocking access to it.

Organizational measures - carrying out activities to limit access to the secret information of employees of the organization and third parties.

Legal (legal) measures - consultations on federal legislation in the field of information security and various legal acts.

2 Methods for protecting commercial secrets in enterprises

Protection of commercial secrecy is regulated by FZ No. 98 "On Commercial Secret", which regulates the rules for establishing the CT regime and the methodological part of the organization of the CT in the enterprise. The regulatory commercial secrets of the publication of the Russian legislative system also includes TKRF, which regulates relations between the employee and the employer in the context of working with CT; as well as the Civil Code of the Russian Federation (part 4, chapter 75: regulates the relationship between the owner and counterparty, the right to the secret of production and the measure of the responsibility of the parties). And, of course, the COAP and the Criminal Code of the Russian Federation: in cases of violation of the CT regime (as well as the requirements of any other federal law), good full responsibility should be provided. Stand on specific features in the above documents will not (although this is a separate and no less interesting topic), but to limit ourselves to the transfer of CT protection measures due to the 98th law and on comments to them.

The protection of the CT in the commercial enterprise itself, it may well be (and often) the central link in the IB, which follows from the definition of the information component of the CT, which says that this is information that has (attention!) Actual commercial value by virtue Its unknown to third parties and the disclosure of which, at the same time, can lead to losses of the enterprise. If there is no clear substantiation and evidence of the financial value of information under the corrup CT, then all attempts to proof of anything in court - it can be safely argued - fail, because the first and important step of protection CT should be a full-fledged analysis of the risks of disclosure and actual financial value. Information / Possible losses in case of disclosure. The priority task of protection, speaking of CT, is understandable, is the confidentiality implemented in the SPT system (CT protection system).

Protection of commercial secrecy as part of entrepreneurship security as a whole assumes that possible unlawful encroachments on commercial information may have different focus. In this regard, an effective protection mechanism must include:

· Legal support of commercial secrets;

· Implementation of organizational protection;

· Implementation of engineering protection;

· Motivation of employees, from the behavior of which depends on the leak of information;

· Responsibility for disclosing confidential information.

IN different countries His priority ways to protect commercial information (commercial secrecy). Thus, legislative measures prevail in Germany, in the United States and France, preference is given to the organization of their own security services of the company, in the UK, protection is provided by contractual obligations.

Russian entrepreneurs use the following main ways to protect information:

legislative protection is based on the observance of the entrepreneur rights to confidential information that are enshrined in the legislation of the Russian Federation. In case of violation of the rights of the entrepreneur as the owner, owner or user of the information, it addresses the relevant authorities (Ministry of Internal Affairs, FSB, the Prosecutor's Office, the Court) to restore the violated rights, damages, etc.;

physical protection - includes bandwidth in the enterprise, security, special cards for outsiders, the use of closing safes, cabinets, etc.;

organizational protection - includes:

· Introducing the post or creation of a service responsible for attributing certain information to the category of confidential, compliance with the rules of access and use of this information;

· Separation of information on the degree of confidentiality and organization of admission to confidential information only in accordance with the post or with the permission of the Guide;

· Compliance with the established rules for using information; The presence of a permanent control system for compliance with the rules of access and use of information (control may be visual, documentary, etc.);

Technical protection - provides for the use of such controls and sewn such as signaling devices, camcorders, microphones, identification tools, as well as software for protecting computer systems from unauthorized access;

working with personnel - involves the active work of personnel services of the company on a set, check, training, arrangement, promotion, stimulating personnel. Personnel should be carried out regularly on the need to comply with the rules for the use of confidential information and responsibility for their violation.

It is well known that the personnel of the firm can become both an object and a subject of threats to its safety. Therefore, it is advisable to conduct preventive and current measures aimed at working with personnel. The importance of working with personnel is determined by the fact that if the employee is desire to disclose information (by virtue of mercenary or other motives), which are a commercial secret, will not be able to prevent anyone, even the most expensive means of protection. Western specialists in ensuring economic security believe that the safety of confidential information by 80% depends on the proper selection, alignment and education of personnel.

Threats economic security Firms from, for example, competitors implemented through its personnel can take such forms as:

· Liabuting employees who own confidential information;

· False job offers to competitors to information reasons;

· Removing confidential information from employees in such a form that employees do not recognize the goal of issues;

· Direct bribery employees of competitors;

· Fasting agents to competitors;

· Secret observation of competitors' employees.

The organization of effective protection of the economic security of the company from personnel includes three main stages of working with employees admitted to confidential information:

· Preliminary (period preceding employee's work);

· Current (employee's work period at the company);

· Final (dismissal of an employee).

The preliminary stage is the most responsible and, accordingly, the most difficult. In the event of the need to take a new employee to work related to admission to confidential information, it is more expedient to comply with the following technique of reception.

First of all, on the basis of the official instructions and features of the activity, the requirements for a candidate for a position are developed, and not only formal (gender, age, education, work experience), but also moral and psychological. This allows you to clarify which employee is needed by the company, and the candidate itself is to compare whether its own qualities are compliant.

Then selection of candidates for a vacant position. Methods of selection can be diverse. Preference should be given to those methods that minimize the possibility of penetration into the firm of unscrupulous people representing the interests of either competitors or criminal structures.

These methods include:

· Appeal to the employment service, employment employment agencies and other similar organizations;

· Find candidates among students and graduates of higher educational institutions;

The selection based on the accidental treatment of candidates directly to the firm may pose a threat to its economic security in the future.

It is advisable, especially with the random selection of a candidate, make a request for the previous place of work in order to obtain the characteristics of its moral and business qualities, as well as data on redeemed communities.

For a more complete acquaintance with the identity of the candidate, it is possible to take advantage of the services of the internal affairs bodies. Internal affairs bodies provide information on the presence (absence) of a candidate criminal record and on wanted persons.

After familiarizing with the documents of the candidate (personal documents, documents on education, the former position and work, characteristics and recommendations), and the candidate himself, with the requirements for it and the recognition of mutual compliance, the employee of the employee of the company with a candidate is being interviewed. The candidate fills the questionnaire, answers questions, including issues of professional and psychological tests. It should be noted that the psychological qualities of the candidate are no less important than professional. Psychological selection allows not only to find out the moral and ethical qualities of the candidate, its weakness, the stability of the psyche, but also its possible criminal inclinations, the ability to keep secrets.

When successful passage The candidate of verification and recognition of its respective posts is concluded (signing) of two documents:

· Labor contract (contract). The contract must necessarily contain a clause of the employee's duties not to disclose confidential information (commercial secret) and comply with security measures;

· Agreements (obligations) on non-disclosure of confidential information (commercial mystery), which is legal documentIn which a candidate for a vacant position gives a promise to not disclose the information that he will be known during his work in the firm, as well as responsibility for their disclosure or non-compliance with the safety rules.

Second phase. The immediate activities of the newly accepted employee in order to verify its compliance with the position of the position should begin with the trial period, at the end of which the final decision is made to admit a permanent job candidate.

An employee adopted on a permanent job must be familiar with the procedure for accessing employees to confidential information (commercial secrecy). All employees of the company (enterprises), dealing with confidential information, have the right to get acquainted with this information only in the amount provided by their official duties And required for work. In this regard, each position should provide for the right to obtain a certain amount of confidential information, the exchange for which will be considered a violation of responsibilities and represent a certain threat to the security of the firm. The size of this list is determined by the head of the company or the Special Commission. In accordance with it, each employee receives admission to confidential information of a certain level.

An effective way to protect information, especially if the firm has a number of industries (workshops, divisions, sites), is the restriction of physical access (displacement) of personnel to other areas that are not related to the functional duties of employees. A visit to the "closed" territories is made only with the permission of the manual.

In conclusion, it should be said that ensuring the economic security of the firm requires significant financial costs, and therefore the use of all the considered methods of all considered methods can afford only enough large and solvent enterprises.

Conclusion

The commercial secret is the information being secret in the understanding that it is generally or in a certain form and a combination of its component parts is unknown and is not easily accessible to individuals who usually deal with the type of information to which it belongs in this connection has Commercial value is the subject of adequate circumstances to preserve its secrecy consumed by the person who legitimately controls this information.

The commercial secret may be the information of a technical, organizational, commercial, industrial and other character, with the exception of those that in accordance with the law cannot be attributed to a commercial secret.

The mystery will remain a secret only, provided that its owner has taken everything necessary for its preservation.

The state, protecting the interests of the entrepreneur, takes a set of measures incl. on the legislative level. the federal law Russian Federation On July 29, 2004, N 98-FZ "On Commercial Secret" is designed to bring order in this area, it gives the definition of commercial secrets, methods and methods of its protection and establishes responsibility for violation of this law.

In order for the rights of the owner of commercial secrets, the following conditions must be completed:

Information should have a valid or potential commercial value due to its uncertainty to third parties;

Third parties should not be free access to these information on the legitimate basis;

The owner of the information must be introduced the mode of commercial secrecy and measures taken to protect its confidentiality.

The deadline for the protection of commercial secrets is not limited (in contrast, for example, from a patent) and can last until the confidentiality mode is preserved.

However, the commercial mystery regime is considered established only after the company's adoption of certain measures established by law.

In order to ensure the safety of confidential information (and in the case of its disclosure, it is necessary to attract guilty person to responsibility), it is necessary to include a special provision for the protection of commercial secrets in the employment contract. With its absence it will be impossible to apply any sanctions to the employee, because the preservation of the commercial secrecy of the employer is not directly provided for by the employee's responsibilities for the Labor Code of the Russian Federation.

Bibliographic list

1. Labor Code RF dated December 30, 2001 N 197-ФЗ

2. Federal Law of the Russian Federation of July 29, 2004 N 98-FZ "On Commercial Secret" (with ame. From 11.07.2011 N 200-FZ)

3. Andreev V.K. Basics of entrepreneurial activity. - M., 2009. - 526 p.

Doynikov I.V. Entrepreneurial law: studies. Manual / Dianikov I.V., - M.: Prior, 2012. - 464 p.

Dolinskaya V.V. Entrepreneurial law: studies. For SPO / Dolinskaya V.V., - M.: Academy, 2012. - 192 p.

Ershova I.V. Business entrepreneurial: questions and answers. - 2nd ed., Act and Extras. - M.: Jurisprudence, 2010. - 325 s.

Commercial law: textbook Ed. V. F. Popondopulo, V. F. Yakovlev. - SPb.: Publisher of St. Petersburg University, 2009. - 468 p.

Commercial law: Textbook / A.Yu. Bashev, O.A. Cities, N.S. Kovalevskaya et al.; Ed. V.F. Popondeople, V.F. Yakovleva. - SPb.: Publisher of St. Petersburg University, 2010. - 566 p.

Crussia V.I. Entitlestural entity - constitutional authority Personality / Crussia VI, - M.: Lawyer, 2013. - 672 p.

Kudinov O.A. Entrepreneurial (economic) law: studies. Manual / Kudinov O.A., - M.: Dashkov and K, 2010. - 272 p.

Laptev V.V. Entrepreneurial law: the concept and subjects / Laptev V.V., - M.: Lawyer, 2009. - 140 p.

Moocher S.V., Nekrasova V.V. Basics of the organization of entrepreneurial activities. For universities - M.: Prior, 2009. - 428 p.

Entrepreneurial organization: Tutorial / Ed. A.S. Pelica. Edition Second, copy. and add. - M.: ICC "March" Rr.: Publishing Center "Mart", 2011. - 522 p.

Poponophulo V.F. Commercial (entrepreneurial) law: studies. For universities / Popond Powered V.F., - M.: Lawyer, 2012. - 668 p.

Entrepreneurial law of the Russian Federation: studies. For universities - M.: Norm, 2011. - 1008 p.

Entrepreneurial law: studies. For SPO - M.: Lawyer, 2013. - 416 p.

The main concepts directly related to the term commercial mystery are most fully brought in the federal law "On Commercial Secret". The definition below is far from excellence, but it remains to be guided by them as the only legal.

So, Article 3 of the Federal Law "On Commercial Secret" gives the definition of commercial mystery:

"The confidentiality of information that allows its owner with existing or possible circumstances to increase revenues, avoid unjustified costs, to maintain a position in the market of goods, works, services or to get other commercial benefits." A commercial mystery is not a type of information, and its certain state is confidentiality, which allows the information holder to obtain exclusively commercial benefits in the form: increasing income, avoiding unjustified costs, maintaining the situation on the market or receiving other commercial benefits.

Also, the law lists information that cannot relate to commercial secrets. According to Article 5 of the Federal Law "On Commercial Secret", the commercial mystery regime cannot be established by entrepreneurial activities regarding the following information:

  • 1) contained in the constituent documents of a legal entity, documents confirming the fact of making entries on legal entities and on individual entrepreneurs to the relevant state registers;
  • 2) contained in the documents giving the right to carry out entrepreneurial activities;
  • 3) on the composition of the property of the state or municipal unitary enterprise, state institution and on the use of funds of the relevant budgets;
  • 4) contamination ambientcondition fire safety, sanitary and epidemiological and radiation atmosphere, security food products and other factors that have a negative impact on ensuring safe operation production facilities, the safety of every citizen and the safety of the population as a whole;
  • 5) about the number, about the composition of employees, about the system of wage, on labor conditions, including labor protection, on indicators of industrial injuries and professional morbidity, and the availability of free jobs;
  • 6) about debt employers for payment wages and other social payments;
  • 7) on violations of the legislation of the Russian Federation and the facts of attracting responsibility for committing these violations;
  • 8) on the conditions of competitions or auctions for the privatization of objects of state or municipal property;
  • 9) on the size and structure of income of non-commercial organizations, the size and composition of their property, their expenses, about the number and payment of their employees, on the use of gratuitous work of citizens in the activities of a non-profit organization;
  • 10) on the list of persons who have the right to act without a power of attorney on behalf of a legal entity;
  • 11) The obligation of the disclosure of which or the inadmissibility of restricting access to which is established by other federal laws.

Act legal norms Begins from the moment of attributing information to commercial secrets. The potential owner of confidential information itself is solved by this question - an individual entrepreneur or legal entity (commercial or non-profit organization). Usually such a right is provided to the head of the legal entity. The most important thing here, on the one hand, to avoid errors in defining information, including exactly the information that really constitutes a commercial secret, and on the other - to give a detailed qualified description of these information and establish a special mode of their use so that in Further avoid conflicts in assessing this or that information as representing a commercial secret or as it does not represent.

Specific information has the quality of commercial secrecy in the presence of three conditions at the same time. First, if it has a valid or potential commercial value due to the uncertainty of its third parties. This means that information is not only Nova, original, but also has or can acquire consumer value in the future, that is, it is a product, it is of interest to business entities, can act as a purchase and sale, exchange or other appeal. On the market. Secondly, there is no free access on the legitimate basis, that is, the owner of the information is not obliged to represent it (compensated or free of charge) to persons in need of such information. Third, the owner of information takes measures to protect its confidentiality: it does not disclose in the media, it does not put on stands, in advertising, does not store in publicly available places, etc. Thus, the right of individual entrepreneurs has protected by legislation, commercial and non-commercial organizations on classifying information about their production, economic and financial activitieswhich, becoming known to competitors or other unauthorized persons, can cause material and (or) moral harm to the initial owners of these information.

When solving a commercial secret individual entrepreneurs And legal entities are often faced with two difficulties. The first is caused by the fact that they may be owners (owners) of information resources containing information relating to state secret. The latter, as well as confidential information, is included in the category of limited access, but with more stringent legal regime. Relations arising in connection with the assignment of information to state secrets, their declassifier and protection, are governed by the Law of the Russian Federation of August 21, 1993 No. 5485-1 "On State Secret". Decree of the Government of the Russian Federation of August 2, 1997 No. 973 approved the Regulations on the preparation for the transfer of information constituting a state secret, to other states.

The list of information that may be regarded as a state secret is given in Art. 5 of the Law "On State Secret". The list includes information in the military field, in the field of economics, science and technology and foreign policy. If the information assigned to the owner (owner) of the commercial secret relate to state security and fall under the indicated list, then the competent state body has the right to decide on the attribution of them to the state secrets.

The second difficulty is the separation of official secrets from commercial. This difficulty in contrast to the first does not have such a significant value. The solution of this issue suggests, above all, clarification of the place of service and commercial secrecy in the system public relations Regarding the information. Article 9 of the Federal Law "On Information, Information Technologies and Information Protection" states that the protection of information constituting the state secret is carried out in accordance with the legislation of the Russian Federation on state secrets and federal laws, the conditions for attributing information to the information constituting commercial secrecy and other Secret, the obligation to comply with the confidentiality of such information, as well as responsibility for its disclosure.

The century of active development of business is the ownership of information about competing organizations - one of the most important success factors. Any company has its own special technologies, marketing secrets, advanced scientific developments, helping to occupy their niche in the market and distinguish between other organizations operating in the same direction. Information about the secrets of commercial success must be carefully protected, and for this, the concept of commercial secrets was introduced into legislation.

Classified information is a commercial secret

Commercial secrecy is a classified information that contributes to an increase in income and reduce costs. This is the information representing the value for third parties, since their disclosure allows you to get

Under such a definition may include a variety of information related to entrepreneurial and industrial activities, as well as with intellectual labor. First of all, this is know-how - scientific and technological developments that allow the manufacturer to bypass competitors. Naturally, if the data about them will be stolen or accidentally disclosed, the enterprise will lose its advantage.

In addition, information on the Customs Base, financial flows inside the organization, the company's marketing policy, and other information representing the value for other firms may be subject to the law on commercial secrecy. The status of commercial secrecy information acquires only if it is clothed in a certain material form: projects, product samples, models, layouts, etc.

In addition, only officially registered organizations and enterprises can be calculated to protect confidential information. it joint Stock Company, as well as individual entrepreneurs who have passed the procedure for registration with entering the registry.

A certain circle of information according to the law can not be considered a commercial secret: this is information about, management of the enterprise, payment of labor, the number of employees. Financial organizationsSuch as banks or are not eligible to classify accounting reports from shareholders, their activities should remain controlled and transparent.

The less information is classified, the higher the chance to maintain it in secret. There is no need to declare confidential well-known data, it will only make it difficult to control the control system.

Thus, the following main signs of confidential information can be distinguished:

  1. The information belongs to a specific company, and the access of unauthorized persons is limited to it.
  2. It is related to the commercial activities of the organization and has value for third-party companies.
  3. Information limits the access of strangers to them.
  4. Any firm has the right to store in the enterprise the regime of secrecy, protecting information from theft and disclosure.

Did you think about how to protect information about your customers, treaties, developments, know-how from competitors and unfair employees? Webinar "Protection of Commercial Secrets":

Patent or commercial mystery?

If the company is developing new technologies or works with new inventions, they can be patent. Patent is a document confirming exceptional law Inventor to its invention, and it provides protection against unresolved use. If the company works with patentable information, you will have to choose: either disclose the information by receiving a patent for the invention or keep them secret.

In the second case, it is extremely difficult to prove the exclusive right to information if it becomes known to third parties. Moreover, competitors will be able to patent your invention under your name. However, some manufacturers for dozens of years comply with secrecy mode and produce unique products.

One of the most striking examples is a Coca-Cola drink: there are special ingredients in his recipe, which manufacturer does not reveal more than a hundred years. However, the invention remains relevant to the market, although it was not officially patented.

Thus, choosing a patent or preservation of commercial secrets, it is necessary to take into account the specifics of products, the complexity of its production, as well as the complexity of saving information in secret. If the invention is easily reproduced, it is easier to patent to prevent damages from information leakage.

How to ensure the safety of information?

For the disclosure of commercial secrets - punishment!

Any company should take preventive measures to maintain secrecy. If the information has already been stolen and become available to competitors, it will be very difficult to prove something and avoid damages.

However, you can take care of information security in advance and build an effective protection system. The federal law provides for the following list of basic measures to ensure the safety of commercial secrets:

  • Definition of a list of confidential information. It is necessary to clearly establish which information is secret to guarantee their secure. Usually, the larger the scale of the enterprise, the more information has to be protected from disclosure. The list is approved
  • Access restriction K. important information. A provision for working with information constituting a commercial secret should be developed, and it is clearly prescribed a circle of persons who are allowed access to them. The list determines not only the circle of admitted employees, but also business partners.
  • Organization of accounting for important information. This is the registration system of each document that enters the enterprise or comes from it, password system for electronic access to information resources, Journals of accounting for samples, etc. This allows you to prevent the access of strangers, as well as provide supervision of your own which can also hire a competing firm.
  • Conclusion Agreement with employees. IN labor agreement A clause on non-disclosure of secret information should be present not only during operation, but also for a certain period after dismissal. You can arrange an additional confidential conservation agreement, it is necessary to specify a list of information that should not be disclosed. Signature of the employee under and supplementary agreement It confirms that it takes the conditions and knows about the responsibility for the disclosure.
  • Arrangement with counterparties. If the company's partners have access to secretaries, they should also sign non-disclosure documents.
  • The placement of the grid "Commercial Mystery" on paper documents and other information media. Next to the vulture must be the full name of the company.
  • Choosing responsible persons and ensuring controlling the implementation of all of the above measures.

Large organizations create whole departments engaged exclusively information security Enterprises. They prevent leakage of information and its theory, which gives employees the opportunity to work quietly, and the company is to receive stable.

Each employee has strictly limited access to important information, and this allows you to prevent leaks between the departments.

Possible sources of information leakage

Secrets can issue anyone ...

In any organization, access to confidential data has not only directly employees. It must be borne in mind that they will be used yet whole line Persons who can issue the secrets of the enterprise to competitors:

  • Third-party consultants. If the organization works with foreign partners, most often it has to resort to the help of translators who will be aware of all the works of the organization. With them, it is also necessary to conclude an agreement on non-disclosure.
  • Contracts working under the contract. The contract must present a special point of responsibility for disclosing secret information.
  • Technical staff are cleaners, electricians, employees of technical support, etc. Providing secrecy in the enterprise requires strictly controlling the documentation: it should not remain on the work desks of employees, all secret information should be kept in the safes.

The most difficult moment: information may be affordable and familiar employees. They may accidentally disclose important data, and in this case it will be simply impossible to find the perpetrators and attract them to justice. Cohesive teamwork is needed, and each employee must understand why the information needs to be kept secret, and how much the stability and prosperity of the whole organization depends on it.

In addition, you need to take into account the possibility of unauthorized access. This is the direct penetration of hackers to the office or the production object, and the virtual hacking using new hacker techniques. Any enterprise must have a security system that will protect not only valuable property, but also the secrets of the organization, which in the end can cost much more expensive. The security system must be constantly monitored and updated to be able to resist all types of hacking.

Crimes in cyberspace with the abduction of information have long become a reality. Experienced hackers can bypass multistage protection systems and steal valuable information using special programs. It is necessary to carry out regular instructions on cybersecurity measures, as well as update the password system.

Fully protecting the organization from the disclosure of commercial secrecy is extremely difficult, however, the set of measures will significantly reduce the likelihood of information leakage. An integrated approach will help to confront the attacks of competitors and will not take advantage of the secret information of the organization.

2. Environment of the functioning of the enterprise

3. Organization of commercial activities in the enterprise

4. Sources and content of commercial information, ensuring its confidentiality

5. Organizational and technical measures to ensure the safety of commercial secrets

Conclusions and offers

List of used literature

Introduction

According to Western theorists-economists, the successful development of entrepreneurship significantly depends on the political and economic environment (command-administrative or market-competitive), in which it operates.

However, an equally important factor that is constantly related to a certain economic environment is a criminogenic and other, imperative or appropriate to the action of the entrepreneur, the situation. The presence of conditions under which the real threat to harm (damage) is created by the business entity, sets a number of priority and long-term tasks requiring an operational decision, the problem of ensuring economic security.

In connection with the development of market relations, entrepreneurial activities in our country have to be carried out in the conditions of variability of the economic environment. It means that there is ambiguity and uncertainty in obtaining the expected end result, and therefore risk increases, that is, the danger of failure, unforeseen losses.

The relevance of work is based on the fact that legal Institute Commercial secrecy is an integral attribute of a market economy. In the process of carrying out entrepreneurial activity, a large number of diverse information is accurate for the successful business development. IN modern conditions Information Society Information acquires the importance of the most important resource, without which the normal functioning is unthinkable by a separate entrepreneur, nor society and the state as a whole. Moreover, with the development and improvement of information technologies, information acquires the nature of one of the most important types of goods in the market. Naturally, a person with this kind of information seeks to preserve the pointh information, to prevent its receipt by third lindens, since many cases such a receipt may have simply disastrous consequences for business.

In modern conditions, the hard competition is necessary for the protection of various kinds of information is necessary for the successful development of entrepreneurship and the formation of a truly market economy based on free competition. Ensuring the security of domestic scientific and technical products contributes to the maintenance of national, including the economic and technological safety of Russia. Reliable protection of the results of intellectual activity is the most effective means of combating industrial espionage, it contributes to the protection of the rights of authors and owners of scientific and technical results.

Many issues of entrepreneurial activity are regulated and provided by civil, administrative, labor, copyrighted, criminal and other legislation. But not all problems associated with ensuring entrepreneurship are governed by law.

In market and competitive conditions, there are a lot of problems related to ensuring the safety of not only individuals and legal entities, their property ownership, but also to business (commercial) information as the type of intellectual property. To protect entrepreneurial information flows from various types of encroachments, both legal and special measures are used, and in the necessary cases of their integrated use.

A combination of information circulating in business activities can be conditionally grouped in areas:

entrepreneurial (commercial) information system (information on the state of the economic system, factors, positively or adversely affecting the scope of management and commerce, in which the entrepreneur is valid)

legal information system (information on current legislation, regulating and guarding entrepreneurial (commercial) structures)

special operational information system (information on methods, forces and means of ensuring the safety of business information from third-party access).

Object of study term paper are civil relations in the field of protection of commercial information.

The subject of the study of the course work is a commercial mystery on the example of the enterprise LLC "Rent".

The goal of the course work is to consider the concept of commercial secrets and ways to protect it.

Currency tasks:

consider the concept of commercial and official secrets,

characterize information that cannot be a commercial secret,

consider legal regulation of commercial secrets,

consider the protection of commercial secrets within the framework of labor relations,

consider responsibility for violating the commercial secrecy regime.

1. Essence, value of information in commercial activities of the enterprise

Commercial activities are part of the entrepreneurial activity in the commodity market and differs from it by and large only by the fact that the process of manufacturing goods or the provision of the service itself does not cover. In a broad sense, any organization offering products to the market of labor products of their employees, and, therefore, participating in the exchange process can be attributed to the category of subjects of sale. It is important to take into account that if this subject involves receiving revenues from the sale (sales) of goods or the provision of services exceeding the cost of their creation, then its activities are customary to qualify as commercial. Similarly, an idea of \u200b\u200bthe acquisition of raw materials, materials and products for the production of goods and services is also formed.

In the activity of the company, the transfer of information is an indispensable and paramount factor in the normal functioning of the company. At the same time, the efficiency and reliability of information becomes of particular importance. For many firms, the intra-profit information system solves the task of organizing the technological process and is manufacturing.

Information plays an important role in providing information for making management decisions and is one of the factors that reduce production costs and increase its effectiveness. A special role is played by forecasting market processes.

Information on the occurrence during the production of deviations from planned indicators requiring operational solutions is important.

A significant role in decision-making is played by scientific and technical information containing new scientific knowledge, information on the inventions, technical innovations of their company and competitors. This is a continuously replenished overall fund and the potential of knowledge and technical solutions, the practical and timely use of which provides a company a high level of competitiveness.

Information is the basis for the preparation of relevant reports, reports, proposals for developing and making management decisions.

A special role for firms has external information coming from the external environment. Most often, such information is information about the conjuncture, which consists in the market. Of particular importance, this information acquires for firms and enterprises going to enter the market. This information allows such important problems for firms: what to produce, in what volume, and for whom products will be produced. Without solving these problems, the firm is doomed. Information of this kind can be obtained or purchased for a certain amount of specialized information collection companies, competitors, statistical authorities, in addition, can be obtained from the media and other sources. Thus, information plays a huge role and is an integral part of its functioning.

Entrepreneurial activities in all areas are inextricably linked to obtaining and using various kinds of information. Moreover, in modern conditions, the information is a special kind of product having a certain value. For an entrepreneur, the most valuable is the information that it uses to achieve the objectives of the company and the disclosure of which can deprive its possibilities to realize these goals, that is, it creates the threats to the security of business activities. Of course, not all information can, in case of disclosure, create these threats, however, there is a certain part that needs protection.

The information used in entrepreneurial activity is very diverse. It can be divided into two types: industrial and commercial. Industrial information includes information on technology and method of production, technical discoveries and inventions, "know-how", design documentation, software, etc. Commercial information - On the financial and economic situation of the company (accounting), loans and banking operations, on concluded contracts and counterparties, capital structure and plans for investment, marketing strategic plans, analyzing the competitiveness of own products, clients, production development plans, business correspondence, etc.

The concept of official secrets can be found in separate state documents and regulatory acts, as well as in the media and personal communication - it is quite widespread. However, what kind of service mystery and how its legal regulation in the Civil Code of the Russian Federation, not everyone knows. Especially if you consider that this term is currently out of use in legislation.

Service mystery in the Civil Code of the Russian Federation - what it is, legal regulation and regulations

As already mentioned earlier, the concept and definition of official secrets is almost impossible to meet in the legislation - the exception is the old and not edited regulatory acts, separate internal departmental documentation and mention in the press. Nevertheless, not every employer or employee knows about this fact and even more so, understands what it can or could be a service secret, and what does not apply to it and did not apply.

In 2018, under the service secret, most often imply any information that should be protected from access to unauthorized persons and disclosure. In particular, it may include both a commercial secret, which has sufficiently deep and reliable legal regulation and personal data, which are also protected by applicable law. In addition, there is also a professional mystery, which concerns the information obtained in the course of work.

Previously, the service mystery in the Civil Code of the Russian Federation was mentioned in the provisions of Article 139 of the Civil Code of the Russian Federation, which now lost its strength. Under it implied the information that belongs to government agencies and could get to civil servants due to their direct official duties.

The definition of service secrets actually contained in the provisions of the Presidential Decree No. 188 of 06.03.1997, which contains a list of information that is considered confidential - to them include service information. That is - directly related to the state, municipal or other service data with limited access.

What relates to service secrets as a service information

For service information with limited access, in accordance with the legislation of the Russian Federation, there is any information to which citizens' access is limited to individual regulatory acts. At the same time, these information relate not to being secret data on the activities of organizations and services that cannot be disclosed due to the legislative ban on the disclosure of these data or those that were obtained during the implementation of professional activities.

It should be divided by a service secret with secret information - the latter may include the information that constitutes a state or military secret, but not service. Secret character for service information is not provided.

It should also be remembered that legislation strictly regulates the right of citizens to access certain information, and therefore, under any circumstances, no circumstances may not be the following data:

Commercial, professional and service secrets and their differences

Since now the concept of official secrecy was practically leveled in the current legislation, in many respects its function was transferred to a commercial secret. Legal regulation is provided by the regulatory provisions of the Federal Law No. 98 of July 29, 2004. Under commercial secret legislation implies any information obtained in the course of economic activity and having a certain value subject to maintaining them in secret.

Accordingly, it is possible to allocate the following differences in official secrets from commercial:

  • Commercial mystery can belong to both public organizations and private companies, and ordinary citizens, while official mystery refers exclusively to state or municipal objects.
  • The consequences of the disclosure of commercial secrecy will always be the loss of information value and material damage, and the disclosure of official secrecy may entail a violation of the rights of the state or individual individuals.
  • Commercial Mystery B. obligatory Must have any value, while a practical value does not possess a personal secrecy.

Another close concept towards official secret is a professional mystery. In this case, a large number of different are dedicated to this aspect. regulatory documentsMixing separate species Professional secrecy to which can be attributed:

  • Secret correspondence.
  • Medical secret.
  • Mystery confession.
  • Mystery of telephone conversations.
  • Notarial mystery.
  • Lawyer Mystery
  • and other types of information that can be received by third parties when conducting them directly professional activities, and the disclosure of which may entail damage.

At the same time, from a certain point of view, both service and professional mystery are common, as the information obtained during the professional activities of civil servants is both professional and official.

Personal data are a separate object of confidential information and cannot be freely processed and, including disclosed without the consent of their person. At the same time, the protection of personal data concerns any business entities and state bodies, and its legal regulation is ensured by the provisions of FZ No. 152 of July 27, 2006. More information about how the protection of personal data of workers of various enterprises can be read in a separate article.

The consequences of the disclosure of official secrets and responsibility for such actions

Legislation provides for the possibility of attracting persons responsible for the disclosure of information that make up any secret. At the same time, this responsibility may be different and various sanctions will be provided for it. So, the disclosure of official secrecy can entail: