Author:Yaroshenko, Oleg M.
Position:Report - Abstract


Effective functioning of the domestic economy is impossible without the full use of all elements of the market, including the institute of commercial secrets. Unfortunately, as a result of the historical past, this institute was ignored for a long time, and no substantive research was conducted. Only after Ukraine obtained independence, it began to be actively studied and gained practical significance. Nowadays, information becomes an extremely important resource, and sometimes it can be a very dangerous weapon. Possessing information in the modern environment is a necessary component of an effective economic activity of any enterprise. Because transition to market relations inevitably leads to increased competition between economic entities, the level of competition greatly depends on the ability to protect commercial information from misuse. Today protection of commercial information is a pressing problem because it is a valuable component of professional activities of modern society. In particular, issues of protection of rights of economic entities to commercial secrets and protection from competitive intelligence are becoming increasingly important as a result of aggravation of competition forms, which often leads to a misuse of information constituting a commercial secret. Inadequate level of legal regulation of relations involving commercial secret promotes the spread of economic espionage, unfettered use of illegally obtained high-end technologies, software products, marketing and other sensitive economic information by separate individuals.

Unfortunately, to this day, no special law that would regulate all the questions associated with the institute of commercial secrets has been passed. Although the question of adoption of such a law was repeatedly brought up. One of the last was the Draft Law On the Basic Principles of Protection of Commercial Secrets in Ukraine dated 2 October, 2006, No 2249, (Verkhovna Rada of Ukraine, 2006), which was intended to regulate relations involving commercial secrets and to define information that is not a commercial secret, rights of the owner of such information and the procedure for its protection. According to the developers, the adoption of a special law in the sphere of commercial secrets should provide owners of information constituting a commercial secret with adequate tools for protection of their property, limit a person's ability to obtain restricted information, which is created in the course of activities of economic entities and is capable of causing financial and non-material damage to the owners of a commercial secret. In their opinion, the absence of a special law prevents the application of norms on taking administrative, disciplinary and criminal action for illegal acquisition, use, collection and disclosure of commercial secrets.

In our opinion, the labor-legal component should also be taken into account when drafting this legislation. Evaluation of the institute of commercial secrets also needs to be conducted through the prism of relations between an employer and an employee, which, in turn, will provide an opportunity to better understand the essence of commercial secrets and its place in economic security of an enterprise, their essential difference from other types of restricted information (Melnichuk, 2012; Akhmetshin et al., 2018). At the same time, in order to bring the legal regulation mechanism of the institute of commercial secrets up to the best European counterparts, it is appropriate to analyses foreign and international legislation.

Studies of foreign experience regarding the institute of commercial secrets as an object of labor relations is important for Ukrainian labor legislation, because borrowing positive European innovations, norms will facilitate its further balancing, prevention of collisions and regulation misuse, optimal combination of interests of an employee and an employer when using commercial secrets in the course of labor relations. Blanpain & Engels notes that the use of foreign models allows us to get a panoramic view of various ways of solving the same problem, to see how our own legal system correlates with these models, and to identify existing differences, similarities and trends of development (Blanpain & Engels, 2001). Juridical science and practice have already been using comparative legal studies in the research of state-legal phenomena for a long time. Consequently, processes and phenomena in the legal sphere receive broader coverage, an opportunity to better understand the scope and nature of the legal impact on society, the extent and forms of use of foreign legal experience is provided.

The issue of commercial secrets is described in the works of such scholars as Diduk; Kilimnik & Kharitonov; Nosik; Svitlychnyy et al. (Diduk, 2008; Kilimnik & Kharitonov, 2014; Nosik, 2007; Svitlychnyy, 2014). The problems of protection of commercial secrets in the EU was studied by the European Commission in 2011 and 2013 (MARKT/2010/20/D, MARKT/2011/128/D), Aplin, Yu. Kapitsa, G. Androshchuk et al. (Lovells, 2011; European Commission, 2013; Aplin, 2007; Kapitsa, 2000; Androshchuk & Krainev, 2000; Simonin et al., 2016).


In accordance with the goals and objectives of the study, to obtain objective and reliable results, both general and special methods of research into commercial secrets in labor relations were applied. In particular, the following methods have been used:

* comparative-legal method-to describe the specifics of regulating this issue in foreign legal systems, which allowed to generalize and identify areas for improving regulation of this issue, the effectiveness of applying techniques of foreign law in our state.

Formal-legal method-to make suggestions aimed at upgrading the existing legislation and developing a new one to improve regulation of commercial secrets in labor relations.

The main source of information were legislative documents of such countries as the Republic of Moldova, the Kyrgyz Republic, Poland, Lithuania, the United States, France and Switzerland (Parliament of the Republic of Moldova, 1994; Parliament of the Republic of Moldova, 2003; Law of the Kyrgyz Republic, 1998; Ministry of Justice of the Kyrgyz Republic, 2004; Sejm of the Republic of Poland, 1974; Seimas of the Republic of Lithuania, 2016; American Bar Association, 1985; Senate and House of Representatives of the United States of America, 1996). The Labor codes of these countries and ways in which they regulate the institute of commercial secrets were investigated. Concerning the studied problem in the international legal field, there are no specific recommendations from the International Labor Organization or within special international agreements. We were able to highlight certain aspects in some international documents: the Partnership and Co-operation Agreement between Ukraine and the European Communities, the directive of the European Parliament and the Council of 24 October 1995 On the protection of individuals with regard to the processing of personal data and on the free movement of such data, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the North American Free Trade Agreement (NAFTA) etc. (Verkhovna Rada of Ukraine, 1994; European Parliament and the Council, 1995; World Trade Organization, 1994; United States Trade Representative, 1989).


The Analysis of Experience of Foreign Countries in the Field of State Regulation of the Institute of Commercial...

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