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NON-CONTRACTUAL REGULATION OF LEGAL RELATIONS FOR
PROTECTION OF RIGHTS OF SUBJECTS OF COMMERCIAL
CONFIDENTIAL INFORMATION
Raimova Nargiza Doroyevna
Doctor of Sciences in Law
Professor of the Civil Law and International Private Law Department of the
University of World Economy and Diplomacy
https://doi.org/10.5281/zenodo.13987172
Annotation:
In this article is discussed the role of a trade secrets in civil
legal relations by the legislation of the Republic of Uzbekistan. It is known, that
the role of objects of intellectual activity has immeasurably increased, as they
became along with traditional material objects full participants of economic
turnover. In this article is also given a complex analyses of essence and legal
nature of trade secrets as the object of legal relations and elaborated decisions
to improve acting legislation regulating present sphere.
Key words:
information, confidential information, legal regime, types of
information, methods of protection of information.
An important condition for the innovative development of the economy of
the Republic of Uzbekistan today is not only the recognition of civil rights to
trade secrets, but also the availability of a mechanism for their reliable civil legal
protection. Existing in legal science approaches to solving the problems of
information protection are very diverse. In many publications devoted to the
study of trade secret problems, the emphasis is placed on organizational and
managerial, technical, administrative, criminal and other aspects of legal
protection of information and does not pay due attention to civil law issues of
their provision. Meanwhile, lawyers, as the analysis of legal practice shows,
perceive the protection of trade secrets through the prism of civil law means.
Analysis of the legislation governing relations in the field of trade secrets
and trade secrets (know-how), as well as the practice of its implementation
convinces that it is very problematic to actually protect the violated rights to
trade secrets today. This is because the mechanism of protection of trade secret
rights proposed in the Civil Code of the Republic of Uzbekistan and the Law of
the Republic of Uzbekistan “On Trade Secrets” is not yet sufficiently developed
in relation to modern conditions and does not meet the needs of legal practice,
does not fully guarantee the protection of subjective rights and interests of
business entities in this area. Commercial organizations lack a methodology for
calculating and proving losses associated with the violation of trade secret
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rights. The developed general methodology of damages does not take into
account the specifics of protection of rights in this area. Due to the imperfection
of the current mechanism, there is an insignificant number of applications of
right holders, whose rights have been violated, to economic courts with claims
for compensation for losses caused by the disclosure of protected information,
and their lack of practical skills in applying other methods of protection of civil
rights.
Commercialization of the results of scientific research, increasing attention
of business to the use of innovations in their activities requires solving the
problem of selection and effective application in economic practice of ways to
protect the rights to trade secrets. The methods of protection of civil rights
developed in civil science are not always suitable for such an object as
information constituting a trade secret, and without certain adaptation can not
be used in practice. Recommendations contained in the literature are sometimes
of a general nature and do not take into account the specifics of offenses
committed in the circulation of information. Therefore, in our opinion, it is
important to study the ways of protecting the rights to trade secrets at the level
of corporate relations and in the process of contractual and non-contractual
work related to the transfer of information, performance of work (services) in
the information sphere.
The traditional development of civil law is based on the fact that
contractual and non-contractual (so-called tort) liability developed in parallel.
Fundamentally new varieties of civil liability do not yet exist. However, in each
separate area of civil law relations there are specific sets of civil law sanctions.
They are composed due to different combinations of sanctions already known in
civil law, or periodically specific sanctions are provided for certain relations, the
nature of which, especially at the initial stage of their introduction is debatable.
There may be different grounds of liability, subjects of liability.
The obligation of third parties not to violate the trade secret regime is a
civil law obligation. Therefore, its violation entails civil liability. The law
explicitly imposes the obligation to compensate for losses on persons who
obtained undisclosed information by illegal methods. This also applies to
persons who disclosed it contrary to the contract, without legal grounds, using
it. Therefore, such liability will naturally be non-contractual in nature and will
exist in parallel with contractual liability.
Despite the commonality of contractual and non-contractual types of civil
liability it is necessary to note the differences. Tort liability is traditionally a
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separate institute of civil law. It has its own peculiarities, which, first of all, are
expressed in the significant predominance of peremptory norms in the
composition of the legislation [3].
As for non-contractual, or so-called “tort obligations”, the legal literature
uses the concepts of “obligations due to infliction of harm” and “liability for
infliction of harm” as identical in meaning, and in both concepts the basic term is
“liability”
[4].
This provision is reflected in Chapter 57 of the Civil Code of the Republic of
Uzbekistan – “Obligations due to the infliction of harm”, Article 985 of which is
devoted to the general grounds of liability for the infliction of harm. This shows
that there are no contradictions between these concepts and that they are
related to each other [1].
The totality of norms enshrined in Chapter 57 of the Civil Code of the
Republic of Uzbekistan “Obligations due to the infliction of harm” covers a range
of relations much wider than those in the course of which civil liability is
realized. Tort liability is based on the fact of wrongful infliction of harm.
Obligations to compensate for harm may cover cases of rightful infliction of
harm, as well as provide for the obligation to compensate for harm caused
through the fault of others. The existence of the fact of infliction of harm in the
predominant number of cases determines the existence of the grounds of
liability for its infliction, including the liability of another subject.
In obligations arising from the infliction of harm, liability is incurred on
the general grounds set forth in Article 985 of the Civil Code of the Republic of
Uzbekistan, according to which “harm caused by unlawful acts (inaction) to a
citizen's person or property, as well as harm caused to a legal entity, shall be
compensated by the person who caused the harm, in full, including lost profit”.
As a rule, in these cases, liability arises on the basis of the fact of the
offense, and it is with the emergence of an obligation due to the infliction of
harm that liability, i.e. the possibility of applying certain sanctions to the
offender, also appears. By means of tort obligations, the situation that existed
before the offense is restored [5].
As a general rule, wrongful conduct and guilt are necessary conditions of
civil liability for all types of civil offenses, both contractual and non-contractual.
In order to impose civil liability on the debtor by non-fulfillment or improper
fulfillment of the obligation in cases where the creditor has suffered damage or
losses, it is necessary to have a causal link between the unlawful behavior of the
debtor and the resulting consequences.
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Article 333 of the Civil Code of the Republic of Uzbekistan provides for
guilt as a general basis of civil liability for breach of obligations. The provisions
of this article impose strict requirements on a debtor wishing to prove his
innocence and thereby exempt himself from liability. Guilt expresses the attitude
of the offender to the responsibility imposed on him by law or contract.
According to the norms of civil law, the debtor will be liable only if he is guilty of
breach of obligations. In this case, the “presumption of guilt” plays an important
role: the debtor may be released from liability if he proves that there is no fault
on his part in the breach of obligation.
The main measure of civil liability applied to the violator of the right to
confidential commercial information, both in domestic and foreign practice, is to
impose on him the obligation to compensate the injured party for losses, which
may include (if the law or the contract of the parties does not provide for
compensation of losses in a smaller amount) both real damage and lost profits.
In order to apply this measure of liability to the infringer, the owner of
confidential information whose right has been violated must prove that the
information obtained by the infringer meets the requirements established by
law for information constituting confidential information and that the infringer
gained access to such information in an unlawful manner, as well as justify the
amount of damages [2].
In the case of unlawful access to information constituting a trade secret, in
our opinion, it would be possible to demand a judicial injunction to prohibit the
infringer from disclosing and using the information to which he has illegally
gained access. Such a prohibition for unscrupulous infringers should arise
automatically by virtue of the law. Accordingly, this provision should be
reflected in the Law of the Republic of Uzbekistan “On Commercial Secrets”.
Such a sanction could impose on the infringer of the right to a trade secret
the obligation to pay monetary compensation to the owner of confidential
information, whose right has been violated, in an amount to be determined by
the court within the limits established by law in case it is impossible to
determine the exact amount of losses to be compensated by the infringer.
In order to implement this provision, it is advisable to enshrine in the
legislation a provision according to which a person who illegally and in bad faith
gained access to information constituting confidential commercial information
of another person may be compelled by court order to pay monetary
compensation to the victim in the amount determined by the court based on the
circumstances that led to such access.
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An unscrupulous infringer should be held liable for unlawful access to
information constituting confidential commercial information of another person,
even if the information unlawfully accessed is similar to information previously
obtained independently and in good faith.
Another point that I would like to emphasize is the problem of exemption
from liability for infringement of rights to confidential commercially valuable
information of bona fide purchasers, since not in all cases access to information
constituting a trade secret is illegal. In this case, bona fide purchasers are
persons who did not know and did not have reasonable grounds to believe that
the information to which they gained access constitutes a trade secret of another
person, including those who gained access to the information as a result of
accident or error [6].
At the request of the owner of confidential commercial information, such a
bona fide acquirer should be obliged to maintain the confidentiality of such
commercially valuable information. Failure to fulfill this obligation should
already entail liability, since in this case the right of the holder himself to the
information constituting a trade secret is violated.
In our view, the owner of information constituting a trade secret may
assert a claim for unjust enrichment against a person who in good faith obtained
access to such information, unless that bona fide purchaser proves that he
obtained exactly the same information as a result of his research. If he fails to
prove it, unjust enrichment will be expressed in the amounts that the bona fide
acquirer would have had to pay to the holder of the trade secret information if
he had obtained the right to use the trade secret information under a contract
with the holder.
In this connection, the owner of information constituting a trade secret, who has
no possibility to prevent its use by a bona fide purchaser, should demand the
conclusion with the bona fide purchaser of an agreement on granting the right to
use the information constituting a trade secret, or an agreement on granting the
right to use the information constituting a trade secret, on terms determined by
the parties, and in the absence of these terms – by court decision.
References:
1.
Civil law. T.2. Textbook / Edition of E.A. Sukhanov. – M: Bek, 2002. –
P.363.
2.
Gulyayeva N.S. Commercial Secret in Business Activity: Comparative-Legal
Study of Legislation of the Russian Federation, Foreign States and International-
Legal Regulation: Abstract of Dissertation of the Candidate of Legal Sciences. –
Moscow, 2002. – P.25.
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3.
Masalina S.B. Responsibility for copyright infringement, new approaches
influenced by the development of information technologies. Liability in Civil
Law. – Almaty: Private Law Research Institute of KazGUU, 2006. – P.355.
4.
Okyulov O. Basic Application of Civil-Legal Liability // Protected by Law. –
Tashkent, 1999. – No. 9. – P.18.
5.
Civil Law (Part II) / Under the General Edition of H.Rakhmonkulov and
I.Zokirov. – Tashkent: Adolat, 1999. – P.339.
6.
Hasanov A.A. Problems of Protection and Civil-Legal Regulation of the
Exercise of Certain Personal Non-property Rights in the Republic of Uzbekistan:
Abstract of Dissertation of the Candidate of Legal Sciences. – Tashkent, 2003.
– P.27.
