Commentary to Article 126. Official and commercial secrets of the Civil Code of the Republic of Kazakhstan  

The commented article concerns only the information (information) that constitutes an official or commercial secret. This article does not apply to the public law prescriptions of special legislation on state secrets and other legally protected secrets.

Official secrecy should be understood as the secret that concerns information of commercial value and available to government agencies, and commercial secrecy should be understood as the secret that concerns information of commercial value and available to individuals and legal entities engaged in commercial activities.

The legal concept of a trade secret is formulated in Article 21 of the Law on the Protection and Support of Private Entrepreneurship. By commercial secret, paragraph 1 of this article means information that is not state secrets, related to production, technological information, management, finance and other activities of an entrepreneur, the disclosure (transfer, leakage) of which may harm his interests. The division of a secret into official and commercial is relative, since an official secret is a secret if it has commercial value. In addition, employees of government agencies who have become aware of the commercial secrets of other organizations and individuals as a result of their official activities are required to keep this secret.  

Information having an official or commercial secret, in accordance with paragraph 1 of the commented article, is recognized only as information that has three characteristics at the same time.: 1) it has actual or potential commercial value because it is unknown to third parties; 2) there is no access to information to third parties on a legitimate basis; 3) the owner of the information takes measures to protect its confidentiality.

Information that constitutes an official or commercial secret cannot be recognized as information that is freely accessible by law. For example, according to clause 2 of Article 22 of the Decree on State Registration of Rights to Immovable Property and Transactions with it, data on registration and registered rights to immovable property must be submitted by the registering authority to any person. All interested persons, according to clause 3 of Article 4 of the Decree on Business Partnerships, have the right to familiarize themselves with the articles of association of the partnership.

The composition and volume of information constituting an official or commercial secret may be determined by legislation, and in cases where there is no corresponding legislative requirement by entrepreneurs in relation to commercial secrets and government agencies in relation to official ones. For example, the Decree of the President of the Republic of Kazakhstan, which has the force of law, "On Accounting" dated December 26, 1995, established that the contents of accounting registers and internal accounting statements are a commercial secret (art. 10 of the Decree). Commercial secret, paragraph 3 of art . 4 of the Decree on Business Partnerships recognizes the content of the founding agreement of the business partnership.

By virtue of paragraph 2 of the commented article, persons who illegally obtained information constituting an official or commercial secret, as well as employees or contractors who disclosed an official or commercial secret contrary to an employment or civil law contract, are obliged to compensate for the damage caused. Damage in this case should be understood as both damage caused (see paragraph 4 of Article 9 of the Civil Code) and moral damage (Article 352 of the Civil Code).

 Конституция Заң Кодекс Норматив Жарлық Бұйрық Шешім Қаулы Адвокат Алматы Заңгер Қорғаушы Заң қызметі Құқық қорғау Құқықтық қөмек Заңгерлік кеңсе Азаматтық істері Қылмыстық істері Әкімшілік істері Арбитраж даулары Заңгерлік кеңес Заңгер Адвокаттық кеңсе Қазақстан Қорғаушы  Заң компаниясы 

The commentary was prepared within the framework of the scientific and practical research program of the Scientific Research Center of Private Law of the Kazakh State Law University.  

Head of the working group on the preparation of the draft Civil Code of the Republic of Kazakhstan, Corresponding Member of the Academy of Sciences of the Republic of Kazakhstan, Professor Suleimenov M.K.

Deputy head Professor Basin Yu.G.