Unscrupulous partners, gaining access to commercial, tax and banking secrets, jeopardize the company's position in the market. Economic espionage is an illegal method of competition. As a rule, organizations determine a special regime for insider data based on legislative requirements on trade secrets, banks and banking activities, as well as the Tax Code of the Russian Federation. If this information is unlawfully disclosed, the perpetrators may be subject to criminal prosecution under Article 183 of the Criminal Code of the Russian Federation.
What are commercial, tax and banking secrets?
Article 183 of the Criminal Code of the Russian Federation simultaneously protects three types of secrets: commercial, banking and tax.
Trade secrets are confidential data thanks to which entrepreneurs and organizations successfully conduct business and interact with counterparties. For example, information about contractors, know-how, and the value of the company’s property.
Tax secret is information about citizens and enterprises received by the Federal Tax Service and extra-budgetary funds in connection with taxpayers’ obligations to pay taxes and insurance contributions. For example, personal data, transaction information.
Banking secrecy is data that citizens and companies provided to a credit institution when opening an account, making a deposit, or applying for a loan. For example, bank card numbers and PIN codes for them, terms of the loan agreement.
Within organizations, in banks, the Federal Tax Service and other government agencies that receive insider information from citizens and organizations, documentation is being developed to protect all types of secrets. Employees sign a confidentiality agreement.
Conditions on disciplinary and financial liability are included on the basis of the Labor Code of the Russian Federation in the employment contract and job descriptions. After dismissal, the former employee is obliged to continue to keep confidential information that was communicated to him in connection with the performance of his official duties.
Not all information is classified as commercial, tax or banking secret. If you are accused of disseminating confidential data, it is advisable to immediately contact our lawyers. They will tell you how to prove the absence of a violation.
How to prove disclosure of trade secrets
In order for the guilty employee to bear criminal or administrative liability, the following two conditions must be met:
- The company has taken measures to protect commercial information from disclosure.
- The employer proved that a specific employee, for one purpose or another, disseminated information that is considered a trade secret.
To hold an employee accountable, the following actions must be taken:
- Establishment by the employer of the fact of disclosure of trade secret information based on evidence.
- Conducting an investigation within the enterprise by a specially created commission.
- Sending a written request to the employee who is suspected of disclosure with a requirement to provide an explanation.
- In the absence of written explanations from the employee, drawing up an appropriate act.
- The commission makes a decision to bring the employee to administrative or criminal liability.
Criminal law is based on the principle of the presumption of innocence. Based on this, the employer must provide the court with compelling evidence that the employee disclosed a trade secret.
The following facts may be direct evidence of disclosure:
- Discovery of documents containing trade secrets in the possession of an employee in circumstances not related to the labor process, including outside the enterprise.
- Video materials obtained using CCTV cameras, where the fact of disclosure was recorded.
- Recording the sending of secret data by e-mail or copying it to external storage devices, if this is prohibited by the internal documents of the organization.
- Witness testimony of the transfer of classified commercial information to third parties.
What is the receipt and disclosure of information constituting commercial, tax and banking secrets?
The criminal act punishable under Article 183 of the Criminal Code of the Russian Federation is the collection and disclosure of confidential data.
Collecting means illegally obtaining insider information: theft, bribery of an official, threats and other illegal means. For example, an attacker buys confidential data from a company employee.
Disclosure is the disclosure of information to third parties who do not have access to it. For example, a bank does not have the right to disclose information about the accounts and deposits of its clients.
The crime is considered completed from the moment the attacker begins to collect information. It does not matter whether he gained access to commercial, tax or banking secrets.
Commentary on Article 183 of the Criminal Code of the Russian Federation
1. A considerable part of the information located in the sphere of activity of business entities and citizens is of particular value (or commercial significance) both for the organizations themselves and for their partners or clients. The consequence of this is a special attitude towards such information, excluding its wide publicity, and measures taken to protect it. Some of this information is not subject to public disclosure, not only due to the reluctance of the persons interested in this, but also due to the direct instructions of the law. The status of such information was reflected and consolidated in special legal institutions - the institutions of banking, tax and commercial secrets.
2. The social danger of the crime lies in the fact that unlawful actions regarding information constituting a banking, tax or commercial secret, on the one hand, can cause significant harm to business entities or other persons. On the other hand, illegal disclosure of information, for example, about the status of a bank account (or deposit) against the will of its owner, is a serious violation of a citizen’s constitutional rights to privacy.
Acts provided for in parts 1 and 2 of the comment. Articles belong to the category of crimes of minor gravity, Part 3 - of medium gravity, Part 4 - to serious criminal acts.
3. The object of the criminal attack is public relations arising in the sphere of circulation of information constituting commercial, tax or banking secrets. The specified information will be the subject of infringement. Information media, both in documentary and non-documentary form (for example, a floppy disk, a computer hard drive, etc.) are not included in the concept of the subject of the crime in question.
4. A secret is “something hidden from others, not known to everyone, a secret” <1>. It seems incorrect to talk about banking secrecy as part of a commercial secret. Moreover, it is wrong to identify them. Trade and banking secrets have a common legal nature, but, despite a number of common features, they differ in scope and content. Banking secrecy has a number of specific features that are unique to it. In addition, information constituting a banking secret may objectively have no commercial value and therefore will not be a type of trade secret. ——————————— <1> Ozhegov S.I., Shvedova N.Yu. Explanatory dictionary of the Russian language. M., 1995. P. 776.
5. In accordance with civil law, information constitutes a commercial secret when it has actual or potential commercial value due to its unknownness to third parties, there is no free access to it on a legal basis and the owner of the information takes measures to protect its confidentiality.
According to paragraphs 1 and 2 of Art. 3 Federal Law of July 29, 2004 N 98-FZ “On Trade Secrets” (as amended on December 18, 2006) <1> trade secret is a regime of confidentiality of information that allows its owner, under existing or possible circumstances, to increase income, avoid unjustified expenses, and preserve position in the market for goods, works, services or obtain other commercial benefits. Information constituting a trade secret (trade secret) is 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 that have actual or potential commercial value due to its unknownness to third parties, to which third parties do not have free access legally and in respect of which the owner of such information has introduced a trade secret regime. ——————————— <1> NW RF. 2006. N 52 (part 1). Art. 5497. The specified version of the Federal Law comes into force on January 1, 2008. Note scientific ed.
Information that cannot constitute a trade secret is determined by law and other legal acts (Article 139 of the Civil Code), among them the already mentioned Federal Law “On Trade Secrets”.
6. Decree of the President of the Russian Federation dated March 6, 1997 N 188 “On approval of the List of confidential information” (as amended on September 23, 2005) <1> approved the List of confidential information, according to which confidential, along with others, includes information related to commercial activities, access to which is limited in accordance with the Civil Code and other Federal Laws. ——————————— <1> NW RF. 1997. N 10. Art. 1127; 2005. N 39. Art. 3925.
7. There is a whole range of information regarding which the legislative and executive bodies of state power clearly speak as information that cannot constitute a commercial secret. The list of such information is contained in Decree of the Government of the RSFSR dated December 5, 1991 N 35 “On the list of information that cannot constitute a commercial secret” (as amended on October 3, 2002) <1>, Decree of the President of the Russian Federation dated November 16, 1992 N 1392 “On measures to implement industrial policy during the privatization of state-owned enterprises" <2>, the Law on the Securities Market, Order of the Ministry of Finance of Russia dated July 29, 1998 N 34n "On approval of the Regulations on accounting and financial reporting in the Russian Federation" <3> and others. ——————————— <1> SP RF. 1992. N 1 - 2. Art. 7; NW RF. 2002. N 41. Art. 3983.
<2> SAPP. 1992. N 21. Art. 1731.
<3> BNA. 1998. N 23.
Thus, the constituent documents (decision to create an enterprise or the constituent agreement) and the charter of the enterprise, documents giving the right to engage in entrepreneurial activities (registration certificates, licenses, patents), information on established forms of reporting on financial and economic activities and other do not constitute a commercial secret. information necessary to verify the correctness of calculation and payment of taxes and other obligatory payments, documents on payment of taxes and obligatory payments, annual financial statements of the organization, a number of information relating to privatization, disclosure of information of the issuer of publicly placed issue-grade securities, etc.
8. What constitutes the subject of banking secrecy? The Civil Code states: “The bank guarantees the secrecy of the bank account and bank deposit, account transactions and information about the client” (Part 1 of Article 857). In accordance with the Law on Banks, credit institutions and the Central Bank guarantee the secrecy of transactions, accounts and deposits of their clients and correspondents. All employees of a credit institution are required to keep secret the transactions, accounts and deposits of its clients and correspondents, as well as other information established by the credit institution, unless this contradicts the Federal Law (Part 1, Article 26). We are talking about the secret of: a) bank account; b) bank deposit; c) account transactions; d) information about the client; e) information about correspondents; f) other information established by the credit institution.
9. Of fundamental importance in the sphere of circulation of information constituting bank secrecy is the issue of providing such information to government bodies and officials. The law establishes an exhaustive list of persons entitled to receive information constituting bank secrecy. As a general rule, information constituting bank secrecy can only be provided to the clients themselves or their representatives. Such information can be provided to government bodies and their officials only in cases and in the manner prescribed by law (clause 2 of Article 857 of the Civil Code).
10. Persons who have the right to request information constituting bank secrecy are listed in Art. 26 of the Banking Law. For example, certificates on transactions and accounts of legal entities and citizens carrying out entrepreneurial activities without forming a legal entity are issued by the credit organization to these individuals and citizens themselves, courts and arbitration courts (judges), the Accounts Chamber of the Russian Federation, state tax authorities, customs authorities of the Russian Federation in cases provided for by legislative acts on their activities, and with the consent of the prosecutor - to the preliminary investigation bodies in cases under their investigation.
A credit institution has the right to provide information on accounts and deposits of individuals to their owners, as well as to the courts and, with the consent of the prosecutor, to the preliminary investigation bodies in cases that are being processed by these investigative bodies.
Certificates on accounts and deposits in the event of the death of their owners are issued by the credit organization to the persons indicated by the owner of the account or deposit in the testamentary disposition made by the credit organization, notary offices for inheritance cases in their proceedings on the deposits of deceased depositors, and in relation to the accounts of foreign citizens - foreign consular offices institutions.
The issue of the Central Bank and audit organizations is particularly discussed, since due to the specifics of their activities they possess or may possess information constituting bank secrecy. The Central Bank does not have the right to disclose information about accounts, deposits, as well as information about specific transactions and operations from the reports of credit institutions, obtained by it as a result of performing licensing, supervisory and control functions, except in cases provided for by law. Auditing organizations do not have the right to disclose to third parties information about transactions, accounts and deposits of credit institutions, their clients and correspondents, obtained during their audits, except in cases provided for by the Federal Law.
In order to improve measures to combat the legalization (laundering) of proceeds from crime, from February 1, 2002, information on the transactions of legal entities, citizens carrying out entrepreneurial activities without forming a legal entity, and individuals must be provided by credit institutions to the Federal Financial Service monitoring (Rosfinmonitoring) is a body authorized to take measures to combat the legalization (laundering) of proceeds from crime and coordinating the activities of other federal executive authorities in this area. The specified authorized body does not have the right to disclose to third parties information received from credit institutions in accordance with the Federal Law “On Combating the Legalization (Laundering) of Proceeds from Crime and the Financing of Terrorism,” except for the cases provided for by this Law.
11. Tax secrecy is formed by any information about the taxpayer received by the tax authority. The exception is information: a) disclosed by the taxpayer independently or with his consent; b) about the taxpayer identification number; c) on violations of legislation on taxes and fees and penalties for these violations; d) provided to tax or law enforcement authorities of other states in accordance with international treaties (agreements), one of the parties to which is the Russian Federation, on mutual cooperation between tax or law enforcement authorities (in terms of provision to these authorities) (Article 102 of the Tax Code).
12. The objective side of the crime provided for in Part 1 of the comment. article, consists of collecting information constituting commercial, tax or banking secrets. The methods can be varied. The article only names theft of documents, bribery, threats, and, of course, this is not an exhaustive list, since it indicates the possibility of other illegal methods. A necessary condition for qualification under Part 1 is that there should not be free access to the information and its owner has taken all appropriate measures for this.
13. Illegal disclosure or use of such information without the consent of its owner by a person to whom it was entrusted or became known through service or work constitutes a crime under Part 2 of the comment. articles.
13.1. Disclosure should be understood as any actions aimed at familiarizing or the possibility of familiarizing with information constituting a commercial, tax or banking secret, both to an unlimited number of persons (for example, through dissemination in the media, the Internet) and to a specific person.
Illegal disclosure under part 2 comments. Article presupposes the commission of the same actions that are understood as disclosure in Part 1, but these actions are conditioned by the fact that the owner of the relevant information does not consent to this. This also includes violation of the established ban on the disclosure of such information, including disclosure of information as a result of non-compliance with the procedure for its provision, when there is no consent of the owner.
13.2. The same condition (lack of consent of the owner of the information) applies to the illegal use of such information.
Illegal use may consist in the use of relevant information for personal interests or the interests of certain organizations, parties, movements interested in possessing this kind of information, for example, to develop a strategy of behavior and campaigning in the election campaign, in political technologies, etc.
If the culprit sought to receive a reward in exchange for the obtained information, for example, from a competitor of the owner of the information, or the confidential information was to be used to obtain benefits in business, then there are signs of a crime provided for in Part 3 of the comment. article - committed for selfish reasons.
14. To qualify an act as a crime under parts 1 and 2 of the comment. Articles on the presence of harmful consequences are not required. The alternative elements of crime enshrined in them are considered formal, ending accordingly at the moment the collection of information constituting commercial, tax, or banking secrets begins, or the disclosure or use of this information. Qualified personnel (Part 3) have formal-material, and especially qualified (Part 4) - material legislative structures, they are accordingly considered completed at the moment of: a) causing major damage or committing the specified actions out of selfish interest (Part 3); b) the onset of grave consequences (part 4).
14.1. The amount of major damage is determined according to note. to Art. 169 and amounts to over 250 thousand rubles.
14.2. For serious consequences, see paragraph 12 of the commentary. to Art. 201.
15. The subjective side of the crime is characterized by guilt in the form of direct intent. The motive (revenge, personal hostility, desire to get ahead of a competitor) for qualifying an act as a crime under Part 1 or 2 does not matter. In a qualified composition (Part 3), the motive for committing a crime can become significant for its qualification if we are talking about selfish interest.
16. The subject of a criminal offense is any person of sane who has reached the age of 16. These may be persons who became the owners of information constituting commercial, tax or banking secrets due to their professional duties, as well as other persons whose actions were aimed at achieving a criminal result based on the motives and methods indicated in the comment. article.
16.1. The subject of the encroachment may also be special if the disclosure or use of the specified information was carried out by a person to whom the secret of information was entrusted or became known through service or work (parts 2 - 4).
The following types of punishment are provided for a criminal act:
- a fine in the amount of 500,000-1,500,000 rubles;
- forced labor for a period of up to 2-5 years;
- imprisonment for up to 2-7 years.
In addition, a citizen may be deprived of the right to work in a certain position or carry out a specific type of activity.
The severity of the punishment depends on the consequences that occurred in connection with the commission of the crime. In case of major damage or forced bankruptcy of the company, the person may be sent to prison. If the act did not entail serious consequences, it is possible to requalify the composition under one of the articles of the Code of Administrative Offenses of the Russian Federation.
Criminal liability for disclosure of trade secrets
Collecting information that falls under a trade secret through illegal seizure of documents, bribery, threats or any other illegal means is punishable by:
- a fine of up to 500,000 rubles or the total income of the perpetrator for 12 months;
- correctional labor for up to 12 months;
- forced labor for up to 2 years;
- imprisonment for a term of up to 2 years.
Insider information is data of an organization (company) that is not subject to distribution and is known only to a certain circle of people. Federal Law No. 224 protects this information. It stipulates that violation of the rules for storing, receiving and disclosing insider information may result in administrative and criminal liability https://lexconsult.online/7844-insaiderskaya-informatsiya-chto-eto-takoe
Illegal disclosure of commercial information that became known to the perpetrator in the workplace threatens:
- a fine in the amount of 1,000,000 rubles or the total income of the perpetrator for two years with a ban on engaging in certain work activities for 3 years;
- correctional labor for up to 2 years;
- forced labor lasting up to 3 years;
- imprisonment for a term of up to 3 years.
If such actions of the offender caused large-scale damage to the enterprise or they were committed for selfish purposes, then the punishment will be more severe, namely:
- a fine in the amount of 1,500,000 rubles or the total income of the perpetrator for three years with a ban on engaging in certain types of activities for the same period;
- forced labor for up to 5 years;
- imprisonment for a term of up to 5 years.
In cases where the disclosure of commercial information by an employee or employee has resulted in grave consequences, he may be sentenced by a court to:
- forced labor for up to 5 years;
- imprisonment for up to 7 years.
