ENSURING THE RIGHT OF BUSINESS ENTITIES TO COMMERCIAL SECRETS: SPECIFIC ASPECTS OF LEGAL REGULATION

Abstract

This article dedicated to the ensuring of the right to commercial secrets as one of the fundamental rights of business entities in the field of their economic activity. Which is extremely important for creating a free competitive environment, preserving, and developing the national economy. The concept of the ensuring the right of business entities to commercial secrets should be understood as a set of regulatory and legal, as well as institutional mechanisms, and technical means through which a business entity ensuring its right to commercial secrets. As a result of the adaptation of national legislation of Ukraine to the EU acquis and as a result of the implementation of EU Directive 2016/943, the definition of commercial secret, the list of information, and the criteria according to which this information qualifies as a commercial secret should be as close as possible to the requirements of EU standards.
The article argues that relations regarding the provision and protection of the right to ensuring of the commercial secrets must be regulated from the moment an employee is hired and a labor contract (agreement) is concluded with them. It is proposed to amend the Article 40 of the Code of Labor Laws of Ukraine, stating that «in the event of an employee intentionally unlawfully collecting, disclosing, and using information that, according to local regulatory acts, belongs to the commercial secrets of the respective economic entity, it entails disciplinary action in the form of fired from work. In the event that such actions cause material damage, the employee bears full material responsibility for the damage caused, taking into account lost profits».
A significant guarantee for ensuring the right of a business entity of commercial secrets is the possibility of restricting the right of an employee, dismissed from work, to disclose trade secrets for a certain period, which must be specify in the employment agreement (contract) when hiring the employee. Legal provisions that regulate the owner's obligations regarding the protection of commercial secrets need improvement.