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Today, the leakage of trade secrets through industrial espionage and betrayal of company secrets is a more serious threat to companies than ever, despite or because of technological progress. However, the existential importance of such cases for the companies concerned did not arouse the interest of either criminal law jurisprudence or the German legislator for a long period of time. Section 17 of the old version of the German Unfair Competition Act (UWG), which was intended to ensure the protection of trade secrets under criminal law, led a niche existence that received little attention.
It was only as a result of the EU Trade Secrets Directive that the German government felt compelled to reform the protection of trade secrets. It fulfilled this obligation with the German trade secrets act (GeschGehG datet May 26, 2019), which also contains a criminal law regulation. One aim of the Act is to improve the protection of trade secrets, which is perceived as inadequate in view of Section 17 UWG. Whether this goal can be achieved by the GeschGehG, i.e. whether it represents the hoped-for „big hit“, is the subject of this paper.
To this purpose, the definition of trade secrets, which has been legally defined for the first time (§ 2 GeschGehG), is first discussed and the results are compared with the definition developed by case law and literature based on § 17 UWG. The focus is on corporate structures, the outsourcing of corporate tasks to third parties and the reverse engineering of products. This is followed by a description of the elements of the offense of betrayal of trade secrets including a predicate offense analysis and the effects of the first normative protection of whistleblowers.
Based on these results, the paper finally discusses in which constellations former employees who commercially use trade secrets that they (legally) obtained during their employment commit the criminal offense of betrayal of trade secrets
keywordsAngemessene Geheimhaltungsmaßnahmen Betriebsspionage Geheimnishehlerei Geschäftsgeheimnisgesetz Geschäftsgeheimnisse Hinweisgeberschutz Mitnahme durch (ehemalige) Mitarbeiter Reverse Engineering Strafrecht Whistleblowing § 5 Nr. 2 GeschGehG § 23 GeschGehG
Ihr Werk im Verlag Dr. Kovač
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