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Introduction

Urgency of a theme of research. The questions arising in connection with introduction in the civil legislation of a uniform legal category office and a trade secret as special object of the civil rights, demand working out of theoretical concepts in this area.

The Civil code of the Russian Federation considers office and a trade secret as a special kind of wider object of the civil rights - information. At the present stage of development of a civilisation on a planet the tendency of transition from an "industrial" society to a society "information" is looked through. Universal introduction of information and information-telecommunication technologies has created new, unique possibilities for active and effective development of economy and a policy, the state, a society, the citizen. In informatsionnotelekommunikatsionnyh technologies such potential which can lead to fundamental changes in business, the state, a society is put in pawn and will demand a close attention and numerous discussions in all social classes. Discussion is required also because new information possibilities generate also new threats, both for a society, and for the person.

Historical pages of a life of mankind open before us some details of formation of institute of protection of the information, secret preservation. As to a question of occurrence of such institute as a trade secret its occurrence became possible only on.opredelennom a stage of a life of a society in this connection it is possible to assume, that in further its development went in parallel with development of the phenomenon of secret in general.

Process of a division of labour and occurrence of a superfluous product has predetermined necessity of realisation of the last in exchange for other product necessary for a life. Thus, occurrence of the private

To the property promoted goods turnover occurrence, and with it, probably, and necessities of concealment of trading secrets. Now precisely to name occurrence date in a human society of institute of a trade secret it is not obviously possible. However that fact is indisputable, that else great experts, and also trading people reliably stored secrets of the trade in an antiquity. So it is reliable, as for our generation some technologies of the past still remain secret.

Realities of a modern life show, that scientifically - technical revolution has sharply weakened effectiveness of the mechanism author's and a patent right, has led to that the tendency of deduction of knowledge in a secret has got global character. All less efficient as the mechanism of transformation of technological knowledge in the popular information becomes a patent right. Patent descriptions, as a rule, any more do not contain today the information, sufficient for reproduction described, they join only those data which are necessary to the applicant for an illustration of exclusive rights fixed to it

Today introduction of information technologies has created new possibilities for acceleration and increase of efficiency of information processes, has raised quality of information service. The new material data carriers essentially differing from traditional, new mechanisms of its duplicating and distributions have been created, that, in turn, has entailed occurrence of the new relations connected with features of a legal protection of the information.

The problem connected with civil-law protection of a trade secret was not exposed to special monographic researches. Only separate articles, and also dissertational works on separate versions of protection of the information are devoted it.

In this connection there is a problem of knowledge of civil-law ways of protection of the trade secret, having important practical and theoretical value. Similar research allows to avoid appreciably errors at application of norms material and the law of procedure and, thereby, promotes improvement of quality of protection of the information, constituting trade secret.

Research objective is the system analysis of concept "trade secret" and the public legal relations connected with it arising at use of the information in an economic turn as one of the important objects of the civil rights. The special attention is given to questions of legal maintenance of protection of a trade secret. On the basis of such analysis conclusions are drawn and offers on perfection of the legislation and practice of its application are formulated.

According to the designated purpose for its achievement, following problems have been put:

- To open concept of the information;

- To analyse a parity and interrelation of various types of information of the limited access, first of all, state and a trade secret;

- To give classification of subjects of information relations in sphere of protection of secret;

- To consider preconditions of occurrence of a category of a trade secret and tendencies of its development;

- To open specificity of structure of legal relations in the field of a trade secret, in particular to define objects, subjects and the maintenance of legal relations;

- To give the characteristic to forms and ways of protection of a trade secret, to reveal features of use of the general forms and ways of protection of the civil rights with reference to trade secret protection;

- To open features of the contract on a know-how, as contracts of a special sort;

- To consider the maintenance and essential treaty provisions about a know-how to which it is necessary to carry know-how definition in the contract, volume of the transferred rights, confidentiality, a way of an information transfer.

Object of research is the legal bond between institute of a trade secret and the information.

Object of research is the body of laws, regulating elements of structure of the information, constituting trade secret, and also revealing of essence of concept "trade secret" during the various historical periods not only in Russia, but also abroad.

Methodological and theoretical basis of research.

The methodological basis of the dissertation was constituted by fundamental works in the field of the civil law which positions are used taking into account the dialectic approach to the comparative analysis as to a way of definition of a place and essence of any phenomenon by its comparison to other, more known and investigated phenomena. It is applied, besides, the system analysis of legal regulation, and also istorikopravovoj a method.

The special literature under the civil, administrative, criminal, arbitration law of procedure, the civil law of procedure, the criminal procedure, theory of law, the theory of the information and information safety is studied.

Theoretical basis of research are works of the Soviet and Russian scientists-jurists. Works have been used: A.B.Agapova, S.S.Alekseeva, J.M.Baturina, I.L.Bachilo, s.n.bratusja,

M.M.Boguslavsky, V.V.Bezbaha, A.B.Vengerov, E.P.Gavrilova, V.P.Gribanova, V.A.Dozortseva, V.I.Eremenko, N.D.Egorova, I.A.Zenina, A.A.Ivanova, V.A.Koloskova, O.K.Knjazeva, M.V.Krotova, I.S.Muhamedshina, E.J.Motovilovkera, J.A.Nisnevicha, O.A.Pavlovoj, M.M.Rassolova, A.P.

Sergeeva, V.D.Sorokina, E.A.Suhanova, J.K.Tolstogo, T.A.Fadeeva, M.M.Fedotova, R.O.Halfinoj, G.F.Shershenevicha, V.F.Jakovlevoj and others.

In work materials of dissertational researches of M.S.Zeltser (2004г have been used.), A.A.Klishinoj (2004г.), E.V.Shishmarevoj (2004г.).

Scientific novelty of research consists in complex research of features of civil-law protection of a trade secret in whole, in revealing of the general laws inherent grazhdansko - a legal protection, in definition of new categories and revealing of their intrinsic signs, in attempt to give an overall picture of structure of the given protection without dependence from information versions, in specification of some theoretical positions, and also in recommendations about perfection of the legislation, concerning a trade secret.

The substantive provisions which are taken out on protection.

1. On the basis of the analysis and comparison of the rules of law fixed in GK of the Russian Federation and other is standard-legal documents, regulating public relations in information sphere, the conclusion about existence of an independent way of protection of the information in the form of trade secret institute is proved;

2. The conclusion that the same confidential information, depending on its owner (sekretonositelja), can be carried to various kinds of secret protected by the law is proved: commercial or state.

3. A specific problem for participation of the information in the civil circulation is the problem of its isolation from the general information file, its qualification in the form of separate objects author's or a patent right, a know-how, etc. information Reference to those or other objects depends on their nature and conformity to legislatively established criteria of isolation. The further legal regime of corresponding result of creative activity depends on information reference to this or that object of the exclusive right or to a trade secret. In work the analysis of differences between categories commercial and the state secret on a number of key positions is carried out.

Conclusions that necessary and sufficient preconditions for otgranichenija institute of a trade secret from other ways of protection of the information are, civil-law character of protection, conformity of the information to the requirements formulated in GK the Russian Federation, not information hit under sphere of protection of the state secret are defended.

4. The prospect of development of a legal protection of a trade secret is considered, mainly, in a plane of the civil-law legislation that is defined as essence of a trade secret, and bolshej by efficiency of civil-law means at trade secret protection. At the same time, in the federal act About a trade secret [1], it is necessary to provide besides civil-law as well other kinds of responsibility for industrial espionage, disclosure of the confidential information, including, connected with malpractice of workers with the entrusted secrets etc. much more logical from a position of protection of the commercial information would be to provide as the general rule a duty of the counterpart to observe the mode of protection established by the owner of the information, constituting a trade secret if other is not provided by the contract.

5. It is formulated trade secret definition (is specified): the Trade secret - set of the data not being the state secret representing the valid or potential value for the subject of business, which disclosure can cause to it a damage and in which relation appropriate measures on confidentiality preservation are taken.

In the law About a trade secret it is necessary to define the list of data which cannot constitute a trade secret. The given list cannot and should not be settling.

6. The conclusion that subjects of law on a trade secret are not state organisations is proved: citizens Russian, foreign and stateless persons, the Russian and foreign legal bodies, and "official secret" carriers are only the subjects (persons) who are on service in public authorities and local government, the enterprises subordinated to them, establishments and the organisations.

7. Trade secret use probably not only on lawful, but also on the contractual bases, and with reference to a theme of dissertational research, we suggest to define "lawful" use as an implementer of the civil rights in this sphere, and "contractual" use - as the form of realisation within the limits of concrete legal relations.

8. The contract on a know-how is the contract of a special sort. Separate elements of regulation of the patent licence can be applied to the given contract. Hardly it is possible to consider this contract as the licence, considering its essential differences from the contract of the patent licence. It is necessary to pay attention to discriminating features of the unlicensed licence contract and at application in the relation to it of representations about the licence in the broad sense of the word.

9. That at the heart of the contract the actual monopoly lays concerns discriminating features of the contract on a know-how, instead of the exclusive right. Borders of actual monopoly of privacy do not coincide with borders patent monopolies, that in turn influences a formulation of volume of the transferred rights and regulation of these contracts by the antimonopoly law.

The maintenance and know-how existence is established from the contract, therefore in the contract there is an isolation of the confidential information from other information file. For legitimacy of its isolation and zasekrechivanie the owner of a know-how answers. Here it is necessary to give special attention to differentiation of the confidential and unclassified information.

Not enough one permission to use the information, its actual transfer is necessary.

In the contract there are no patent questions. Their place is occupied with confidentiality questions. Confidentiality is not only basic treaty provision, but also a condition of existence of a confidential know-how as object of the contract, an element of its legal regime. About a know-how it is necessary to carry know-how definition to essential treaty provisions in the contract, confidentiality, volume of the transferred rights, a way of an information transfer.

Practical value of research consists that the carried out analysis of the legislation, the formulated practical conclusions and theoretical offers can be used for perfection of is standard-legal regulation grazhdansko - a trade secret legal protection.

Materials of dissertational research can be used in practical activities of owners of a trade secret, and also in the further researches of problems of protection of a trade secret.

Approbation of results of research. The dissertation prepared, reviewed and discussed on chair civil and the law of master and servant of the Russian university of friendship of the people.

The basic conclusions and dissertation positions are reflected by the author in the published scientific articles, stated at scientifically-practical conferences.

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A source: Krikun Lidiya Aleksandrovna. CIVIL-LAW PROTECTION of the TRADE SECRET In the RUSSIAN FEDERATION. The dissertation on competition of a scientific degree of the master of laws. Moscow. 2005

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